Section 2.2 Purchase Price. The purchase price for the Commonwealth Shares (the “Commonwealth Purchase Price”) and the purchase price for the LTIC Shares (the “LTIC Purchase Price”), shall be payable in cash (consisting of the Buyer Cash Amount and the FNF Cash Amount), the FNF Shares and the FNF Note as set forth herein. The purchase price for the UCTIC Shares shall be equal to the Final UCTIC Net Worth, as determined and adjusted pursuant to Section 2.8.
Section 2.8 UCTIC Purchase Price. (a) Not less than one Business Day prior to the Closing Date in respect of UCTIC, Seller shall deliver or cause to be delivered to FNTIC
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Seller’s and NHI’s reasonable good faith estimate of the Net Worth of UCTIC as of 11:59 p.m. on the day prior to such Closing Date (the “Estimated UCTIC Net Worth”)
(b) No later than 45 days after the Closing Date, FNTIC shall deliver to Seller the balance sheet of UCTIC prepared in accordance with the Accounting Principles (the “Subject Balance Sheet”), as of 11:59 p.m. on the night immediately prior to the Closing Date, and a written statement (the “Adjustment Statement”) setting forth in reasonable detail FNTIC’s computation of the amount of Net Worth of UCTIC as of such time based on the Subject Balance Sheet (the “UCTIC Net Worth”).
(c) Seller shall have 30 days from the date on which the Adjustment Statement is delivered to it to review the computation of the UCTIC Net Worth set forth thereon (the “Review Period”). Seller and its Representatives shall be provided with full access to all documentation, records and other information of FNTIC and UCTIC reasonably related to such computations in connection with such review. If Seller disagrees in any respect with the computation of the UCTIC Net Worth shown or reflected in the Adjustment Statement, Seller may, on or prior to the last day of the Review Period, deliver a notice to FNTIC setting forth, in reasonable detail, each disputed item or amount and the basis for Seller’s disagreement therewith (the “Dispute Notice”). The Dispute Notice shall set forth Seller’s position as to the correct UCTIC Net Worth. If no Dispute Notice is received by FNTIC with respect to the UCTIC Net Worth on or prior to the last day of the Review Period, the computation of UCTIC Net Worth set forth in the Adjustment Statement shall be deemed accepted by Seller, whereupon such computation reflected on the Adjustment Statement shall be final and binding on the parties. For ten days after FNTIC receives a Dispute Notice, if any, FNTIC and Seller shall endeavor in good faith to resolve by mutual agreement all matters in the Dispute Notice. In the event that such parties are unable to resolve by mutual agreement any matter in the Dispute Notice within such 10-day period, FNTIC or Seller may engage an accounting firm of national reputation or any other Person, in each case as mutually agreed by the parties hereto (the “Independent Accounting Firm”), as an expert and not as an arbitrator, to make a determination respecting the matters in dispute. Once engaged, FNTIC and Seller will direct the Independent Accounting Firm to render a determination within 30 days of its retention, and FNTIC, Seller and their respective employees and agents will cooperate with the Independent Accounting Firm during its engagement. FNTIC, on the one hand, and Seller, on the other hand, shall each submit a binder to the Independent Accounting Firm promptly (and in any event within 15 days after the Independent Accounting Firm’s engagement), which binder shall contain their respective computations of the UCTIC Net Worth, in each case, to the extent disputed in the Dispute Notice and information, arguments and support for their respective positions. The Independent Accounting Firm shall determine, based solely on such binders presented, and not by independent review, only those issues in dispute specifically set forth in the Dispute Notice and shall render a written report to FNTIC and Seller (the “Adjustment Report”) in which the Independent Accounting Firm shall, after considering all matters set forth in the Dispute Notice, determine what adjustments, if any, should be made to the computation of the UCTIC Net Worth set forth in the Adjustment Statement solely as to the disputed items and shall determine the appropriate final UCTIC Net Worth on that basis. The Adjustment Report shall set forth, in reasonable detail, the Independent Accounting Firm’s determination with respect to each of the disputed items or amounts specified in the Dispute Notice, and the revisions, if any, to be made to the Adjustment Statement and the UCTIC Net Worth, as the case may be, together with supporting calculations. In resolving any
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disputed item, the Independent Accounting Firm: (i) shall be bound to the terms of this Agreement, (ii) shall limit its review to matters specifically set forth in the Dispute Notice and (iii) shall not assign a value to any item higher than the highest value for such item claimed by either party or less than the lowest value for such item claimed by either party. All fees and expenses relating to the work of the Independent Accounting Firm shall be borne by FNTIC, on the one hand, and by Seller, on the other hand, in inverse proportion as they may prevail on the matters resolved by the Independent Accounting Firm, which allocation shall be determined by the Independent Accounting Firm at the time the determination of the Independent Accounting Firm is rendered on the merits of the matters submitted to it. The Adjustment Report, absent fraud, shall be final and binding upon FNTIC and Seller, shall be deemed a final arbitration award that is binding on each of FNTIC and Seller, and no party shall seek further recourse to courts, other tribunals or otherwise, other than to enforce the Adjustment Report. Judgment may be entered to enforce the Adjustment Report in any court having proper jurisdiction. The amount of the UCTIC Net Worth as finally determined pursuant to this Section is referred to herein as the “Final UCTIC Net Worth”.
(d) If the Final UCTIC Net Worth is greater than the Estimated UCTIC Net Worth, FNTIC will within five Business Days after the determination thereof, pay to NHI the sum of (i) the amount of such excess and (ii) an amount of interest on such excess amount at a rate per annum of 6% from the Closing Date in respect of UCTIC to the date such amount is paid. If the Final UCTIC Net Worth is less than the Estimated UCTIC Net Worth, Seller shall, within five Business Days after the determination thereof, cause NHI to pay to FNTIC the sum of (i) the amount of such shortfall and (ii) an amount of interest on such shortfall amount at a rate per annum of 6% from the Closing Date in respect of UCTIC to the date such amount is paid. Such payments will be made by wire transfer of immediately available funds. Alternatively, if an amount is due to FNTIC hereunder, at its option it may elect to permit such amount to be satisfied by a reduction in the principal amount of the FNF Note; any such reduction shall not reduce the rights of Buyers to be indemnified under Article 8 or 9 hereof.
