Common use of Final Working Capital Amount Clause in Contracts

Final Working Capital Amount. As soon as reasonably practicable after the date that is 120 days after the Closing (the “Cut-Off Date”), the Final Working Capital Amount shall be determined in the manner set forth in the succeeding sections: (i) Buyer shall prepare and deliver to the Partner Representative as soon as reasonably practicable after the Cut-Off Date any proposed revisions to the Closing Balance Sheet and any proposed revisions to the Closing Date Net Working Capital, including adjustments to Accounts Receivable reflected on the Closing Balance Sheet and Collected AR as of the Cut-Off Date (the “Final Working Capital Amount”). Buyer’s revised Closing Balance Sheet shall be prepared in accordance with GAAP (it being understood and agreed that the amount of any proposed revision shall be disregarded for purposes of calculating the Final Working Capital Amount to the extent such proposed revision shall result from the application of any accounting policy (A) required by Regulation S-X or (B) that, as between Buyer and the Company, is unique to Buyer, unless the Company’s practices failed to conform to GAAP with respect to the accounting treatment of the item(s) under review, in which case Buyer shall be entitled to make such proposed revision). Buyer shall make available to the Partner Representative and its accountants during regular business hours all pertinent information reasonably requested by the Partner Representative in order to confirm the amounts set forth in the revised Closing Balance Sheet and Final Working Capital Amount. (ii) Within thirty (30) days after the Buyer’s proposed revisions are delivered to the Partner Representative pursuant to subsection (i) above, the Partner Representative shall complete its examination thereof and shall deliver to Buyer either (A) a written acknowledgement accepting the Buyer’s revisions or (B) a written report setting forth in reasonable detail any proposed adjustments to the Buyer’s revisions (the “Adjustment Report”). A failure by the Partner Representative to deliver the Adjustment Report to Buyer within such thirty (30) day period shall be deemed to constitute the Partner Representative’s acceptance of Buyer’s calculation of the Closing Balance Sheet and the Final Working Capital Amount. (iii) During a period of thirty (30) days following the receipt by Buyer of the Adjustment Report, the Partner Representative and Buyer shall attempt to resolve any differences they may have with respect to the matters set forth in the Adjustment Report. In the event the Buyer and the Partner Representative fail to agree on the Closing Balance Sheet and the Final Working Capital Amount within such thirty (30) day period, then the Partner Representative and Buyer mutually agree that the Seattle, Washington office of a firm of nationally recognized independent auditors (or if any such firm is unwilling or unable to serve, another national accounting firm mutually agreed upon by the Partner Representative and Buyer (the “Independent Auditors”), acting as an expert and not as an arbitrator, shall make the final determination with respect to the correctness of the proposed adjustments in the Adjustment Report in light of the terms and provisions of this Agreement. The parties shall use reasonable efforts to cause the Independent Auditors to render their decision as soon as practicable within sixty (60) days after the submission to the Independent Auditors of the proposed adjustments, including by promptly complying with all reasonable requests by the Independent Auditors for information, books, records and similar items. The Independent Auditors shall make a determination as to each of the items in dispute (and each item affected thereby), which determination shall be in writing and furnished to the Partner Representative and Buyer as promptly as practicable after the items in dispute have been referred to the Independent Auditors (but in any event within sixty (60) days thereafter). The decision of the Independent Auditors shall be final and binding on the Buyer and the Partner Representative, and may be used in a court of law by either the Buyer or the Partner Representative for the purpose of enforcing such decision. The costs and expenses of the Independent Auditors pursuant to this section shall be borne by the Buyer and the Partner Representative pro rata in an amount inversely proportional to the dollar value of the disputed items determined in each party’s favor. By way of example, if the Buyer had taken the position that the Final Working Capital Amount was $100, the Partner Representative had taken the position that the Final Working Capital Amount was $200, and the Independent Auditors determine the Final Working Capital Amount to be $130, then the Buyer would pay 30% of the Independent Auditors’ fees and expenses and the Partner Representative, on behalf of the Partners, would pay 70% of the Independent Auditors’ fees and expenses. (iv) If, after determination of the Final Working Capital Amount pursuant to the foregoing, the Final Working Capital Amount exceeds the Working Capital Threshold, the Buyer shall pay to each Partner its Consideration Percentage of such excess plus the amount of the Closing Date Working Capital Offset, if any, made by Buyer pursuant to Section 1.3(a)(iii). If, after determination of the Final Working Capital Amount pursuant to the foregoing, the Final Working Capital Amount is less than the Working Capital Threshold (the “Working Capital Shortfall”), Buyer shall be entitled to recover from the Escrow Fund an amount equal to such Working Capital Shortfall but only to the extent Buyer shall not have recovered such Working Capital Shortfall pursuant to any Closing Date Working Capital Offset made pursuant to Section 1.3(a)(iii).