Preparation of Closing Date Schedule and Final Adjusted Closing Date Schedule. (a) Preparation of Closing Date Schedule. (i) As soon as practicable following the Closing, the Purchaser shall prepare, with the cooperation and assistance of the Seller, a draft of the Closing Date Schedule. The Closing Date Schedule shall reflect the Purchased Assets and the Assumed Liabilities. The draft of the Closing Date Schedule shall be prepared in accordance with the Accounting Principles. Notwithstanding the foregoing, (A) if the Accounting Principles do not specifically address a particular matter necessary to prepare the Closing Date Schedule, then the Accounting Principles shall be supplemented in accordance with GAAP, applied consistently with the past practices and procedures of IOS Capital, but only to the extent necessary to address such matter and (B) to the extent that any accounting principle, method, practice or procedure included in the Accounting Principles is not in accordance with GAAP, such accounting principle, method, practice or procedure shall be disregarded for purposes of preparing the Closing Date Schedule but shall be treated as a Special Adjustment for purposes of preparing the Final Adjusted Closing Date Schedule. The Purchaser and the Seller shall each use their respective commercially reasonable efforts to cause the draft of the Closing Date Schedule to be completed within 60 days following the Closing Date and, upon completion, such draft schedule shall promptly be provided to the Purchaser’s Accountants, the Seller and the Seller’s Accountants. (ii) Immediately following the preparation and distribution of the draft of the Closing Date Schedule, the Purchaser shall cause the Purchaser’s Accountants to audit the draft Closing Date Schedule, and such audit shall be conducted in accordance with generally accepted auditing standards and shall be sufficient to permit the Purchaser’s Accountants to deliver a special report certifying that the Closing Date Schedule fairly presents the Purchased Assets and Assumed Liabilities as of the Closing in accordance with the Accounting Principles, qualified only to the extent, if any, that the Purchaser’s Accountants deem such qualification necessary on account of any dispute between the Purchaser’s Accountants and the Seller’s Accountants that is resolved by the conflict resolution mechanism set forth in Section 5.05(b) or agreed by the Purchaser and the Seller, in either case, in a manner that in the Purchaser’s Accountants’ sole judgment precludes the Purchaser’s Accountants from issuing an unqualified certification. The Purchaser shall use reasonable efforts to cause the Purchaser’s Accountants to deliver the draft audited Closing Date Schedule to each of the Seller, the Seller’s Accountants and the Purchaser within 60 days following the date of their receipt of the draft of the Closing Date Schedule. (iii) Concurrently with the preparation and delivery to the Purchaser, the Seller and the Seller’s Accountants of the draft of the audited Closing Date Schedule, the Purchaser shall cause the Purchaser’s Accountants to prepare (after consultation with the Purchaser, the Seller and the Seller’s Accountants ), and to deliver to the Purchaser, the Seller and the Seller’s Accountants, a draft of the adjusted Closing Date Schedule that reflects the Special Adjustments. The Special Adjustments shall be applied in creating the draft of the adjusted Closing Date Schedule, whether or not the Seller’s Accountants or the Purchaser’s Accountants believe the Special Adjustments are or are not in accordance with GAAP or are or are not in accordance with the historic practices of the Business. During the 30 day period following their receipt of each of the draft audited Closing Date Schedule and the draft adjusted Closing Date Schedule reflecting the Special Adjustments (collectively, the “Draft Closing Statements”), both the Purchaser (in consultation with the Purchaser’s Accountants) and the Seller (in consultation with the Seller’s Accountants) shall have the opportunity to review the Draft Closing Statements (together with the Purchaser’s Accountants’ working papers, including any portion thereof pertaining to any proposed adjustment) and, during such 30 day period, the Seller, the Purchaser and the Seller’s Accountants shall have the right to propose to the Purchaser’s Accountants those changes to the Draft Closing Statements that the Seller, the Purchaser or the Seller’s Accountants determine to be appropriate in order to cause the Draft Closing Statements to conform, in all respects, to the standards set forth in Section 5.5(a)(i) and 5.5(a)(iii), as applicable. (iv) In the event of any dispute between the Seller and the Seller’s Accountants, on the one hand, and the Purchaser and the Purchaser’s Accountants, on the other hand, regarding any of the adjustments proposed by the Seller or the Seller’s Accountants, on the one hand, or the Purchaser or the Purchaser’s Accountants, on the other hand, with respect to any item of the Draft Closing Statements, which the Seller and the Seller’s Accountants, on the one hand, and the Purchaser and the Purchaser’s Accountants, on the other hand, cannot resolve within 45 days after the receipt thereof, as the case may be, either the Seller or the Purchaser shall have the right, upon delivery of written notice to the other party, to require that such dispute be resolved in accordance with the provisions set forth in Section 5.05(b). Promptly following the resolution of any disputes with respect to any proposed adjustments to the Draft Closing Statements, the Purchaser shall cause the Purchaser’s Accountants to prepare and deliver to the Seller and the Purchaser the final audited Closing Date Schedule and the Final Adjusted Closing Date Schedule (collectively, the “Final Closing Statements”), each of which shall reflect all adjustments thereto which have been agreed upon by the Seller and the Seller’s Accountants, on the one hand, and the Purchaser and the Purchaser’s Accountants, on the other hand, or which have been resolved pursuant to Section 5.5(b), together with the Purchaser’s Accountants’ special report on each Final Closing Statement. (v) Each of the Purchaser, the Seller, the Purchaser’s Accountants and the Seller’s Accountants shall have full access to all relevant accounting, financial and other records and personnel reasonably requested by it in connection with the preparation, confirmation or review of the Draft Closing Statements, as well as to the Purchaser’s Accountants’ working papers with respect thereto and special report thereon.
Appears in 1 contract
Sources: Asset Purchase Agreement (Ikon Office Solutions Inc)
Preparation of Closing Date Schedule and Final Adjusted Closing Date Schedule. (a) Preparation of Closing Date Schedule.
(i) As soon as practicable following the Closing, the Purchaser shall prepare, with the cooperation and assistance of the Seller, a draft of the Closing Date Schedule. The Closing Date Schedule shall reflect the Purchased Assets and the Assumed Liabilities. The draft of the Closing Date Schedule shall be prepared in accordance with the Accounting Principles. Notwithstanding the foregoing, (A) if the Accounting Principles do not specifically address a particular matter necessary to prepare the Closing Date Schedule, then the Accounting Principles shall be supplemented in accordance with GAAP, applied consistently with the past practices and procedures of IOS Capitalthe Seller, but only to the extent necessary to address such matter and (B) to the extent that any accounting principle, method, practice or procedure included in the Accounting Principles is not in accordance with GAAP, such accounting principle, method, practice or procedure shall be disregarded for purposes of preparing the Closing Date Schedule but shall be treated as a Special Adjustment for purposes of preparing the Final Adjusted Closing Date Schedule. The Purchaser and the Seller shall each use their respective commercially reasonable efforts to cause the draft of the Closing Date Schedule to be completed within as soon as reasonably practicable (which the parties hereto anticipate shall, in no event, be later than 60 days following after the Closing Date date hereof) and, upon completion, such draft schedule shall promptly be provided to the Purchaser’s Accountants, the Seller and the Seller’s Accountants.
(ii) Immediately following the preparation and distribution of the draft of the Closing Date Schedule, the Purchaser shall cause the Purchaser’s Accountants to audit the draft Closing Date Schedule, and such audit shall be conducted in accordance with generally accepted auditing standards and shall be sufficient to permit the Purchaser’s Accountants to deliver a special report certifying that the Closing Date Schedule fairly presents the Purchased Assets and Assumed Liabilities as of the Closing in accordance with the Accounting Principles, qualified only to the extent, if any, that the Purchaser’s Accountants deem such qualification necessary on account of any dispute between the Purchaser’s Accountants and the Seller’s Accountants that is resolved by the conflict resolution mechanism set forth in Section 5.05(b) or agreed by the Purchaser and the Seller, in either case, in a manner that in the Purchaser’s Accountants’ sole judgment precludes the Purchaser’s Accountants from issuing an unqualified certification. The Purchaser shall use reasonable efforts to cause the Purchaser’s Accountants to deliver the draft audited Closing Date Schedule to each of the Seller, the Seller’s Accountants and the Purchaser within as soon as reasonably practicable (which the parties hereto anticipate shall, in no event, be later than 60 days following after the date of their receipt of the draft of the Closing Date Schedule).
(iii) Concurrently with the preparation and delivery to the Purchaser’s Accountants, the Seller and the Seller’s Accountants of the draft of the audited Closing Date Schedule, the Purchaser shall, or shall cause the Purchaser’s Accountants to to, prepare (after consultation with the Purchaser, the Seller and the Seller’s Accountants ), and to deliver to the Purchaser or the Purchaser’s Accountants, as applicable, the Seller and the Seller’s Accountants, a draft of the adjusted Closing Date Schedule that reflects the Special Adjustments. The Special Adjustments shall be applied in creating (the draft of the adjusted Closing Date Schedule, whether or not the Seller’s Accountants or the Purchaser’s Accountants believe the Special Adjustments are or are not in accordance with GAAP or are or are not in accordance with the historic practices of the Business“Interim Balance Sheet”). During the 30 day period following their receipt of each of the draft audited Closing Date Schedule and the draft adjusted Closing Date Schedule reflecting the Special Adjustments (collectively, the “Draft Closing Statements”), both the Purchaser (in consultation with the Purchaser’s Accountants) and the Seller (in consultation with the Seller’s Accountants) shall have the opportunity to review the Draft Closing Statements (together with the Purchaser’s Accountants’ working papers, including any portion thereof pertaining to any proposed adjustment) and, during such 30 day period, the Seller, the Purchaser and the Seller’s Accountants shall have the right to propose to the Purchaser’s Accountants those changes to the Draft Closing Statements that the Seller, the Purchaser or the Seller’s Accountants determine to be appropriate in order to cause the Draft Closing Statements to conform, in all respects, to the standards set forth in Section 5.5(a)(i) and 5.5(a)(iii), as applicable.
(iv) In the event of any dispute between the Seller and the Seller’s Accountants, on the one hand, and the Purchaser and the Purchaser’s Accountants, on the other hand, regarding any of the adjustments proposed by the Seller or the Seller’s Accountants, on the one hand, or the Purchaser or the Purchaser’s Accountants, on the other hand, with respect to any item of the Draft Closing Statements, which the Seller and the Seller’s Accountants, on the one hand, and the Purchaser and the Purchaser’s Accountants, on the other hand, cannot resolve within 45 days after the receipt thereof, as the case may be, either the Seller or the Purchaser shall have the right, upon delivery of written notice to the other party, to require that such dispute be resolved in accordance with the provisions set forth in Section 5.05(b). Promptly following the resolution of any disputes with respect to any proposed adjustments to the Draft Closing Statements, the Purchaser shall cause the Purchaser’s Accountants to prepare and deliver to the Seller and the Purchaser the final audited Closing Date Schedule and the Final Adjusted Closing Date Schedule (collectively, the “Final Closing Statements”), each of which shall reflect all adjustments thereto which have been agreed upon by the Seller and the Seller’s Accountants, on the one hand, and the Purchaser and the Purchaser’s Accountants, on the other hand, or which have been resolved pursuant to Section 5.5(b), together with the Purchaser’s Accountants’ special report on each Final Closing Statement.
(v) Each of the Purchaser, the Seller, the Purchaser’s Accountants and the Seller’s Accountants shall have full access to all relevant accounting, financial and other records and personnel reasonably requested by it in connection with the preparation, confirmation or review of the Draft Closing Statements, as well as to the Purchaser’s Accountants’ working papers with respect thereto and special report thereon.
Appears in 1 contract
Sources: Asset Purchase Agreement (Ikon Office Solutions Inc)