REGIONALLY-RECOGNIZED
INDEPENDENT PUBLIC ACCOUNTING FIRM, WITH WHICH NONE OF THE PARTIES OR ANY OF
THEIR RESPECTIVE AFFILIATES HAS ANY PRIOR OR ONGOING RELATIONSHIP
("ACCOUNTANT"), FOR THE LIMITED PURPOSE OF RESOLVING ONLY THE DISAGREEMENTS OF
THE PARTIES WITH RESPECT TO THE TRUE-UP CALCULATION, PROVIDED THAT ALL
DETERMINATIONS MADE BY THE ACCOUNTANT SHALL BE MADE IN ACCORDANCE WITH THIS
SECTION 1.6(B) (INCLUDING THE SCHEDULES REFERENCED THEREIN).
THE DETERMINATIONS
OF THE ACCOUNTANT SHALL BE CONCLUSIVE AND BINDING ON THE PARTIES, EXCEPT IN THE
EVENT OF MANIFEST ERROR IN SUCH DETERMINATIONS, AND THE FEES AND EXPENSES OF THE
ACCOUNTANT SHALL BE DIVIDED EQUALLY BETWEEN SELLER AND PURCHASER.
EACH PARTY
SHALL BE RESPONSIBLE FOR ANY OTHER FEES AND EXPENSES IT INCURS IN CONNECTION
WITH THE RESOLUTION OF SUCH DISPUTE.
FOR PURPOSES HEREOF, THE "NET WORKING
CAPITAL ADJUSTMENT DETERMINATION DATE" MEANS THE DATE ON WHICH THE FINAL
DETERMINATION OF THE NET WORKING CAPITAL ADJUSTMENT IS MADE IN ACCORDANCE WITH
EITHER SECTION 1.6(B)(III) OR SECTION 1.6(B)(IV).
(V)
PAYMENT.
(A)
PURCHASER SHALL PAY TO SELLER ANY POSITIVE NET
WORKING CAPITAL ADJUSTMENT, IN CASH, PLUS INTEREST THEREON AT A RATE OF SIX
PERCENT (6.0%) PER ANNUM ("BORROWING RATE") FROM THE CLOSING DATE, WITHIN FIVE
(5) BUSINESS DAYS AFTER THE NET WORKING CAPITAL ADJUSTMENT DETERMINATION DATE.
(B)
IN THE EVENT OF A NEGATIVE NET WORKING CAPITAL
ADJUSTMENT, SELLER SHALL PAY TO PURCHASER, ONE-HALF (1/2) OF THE AMOUNT OWED
THROUGH A CLAIM AGAINST AND DEDUCTION FROM THE HOLDBACK FUND, AND THE OTHER
ONE-HALF (1/2) IN CASH, IN BOTH CASES PLUS INTEREST THEREON AT THE BORROWING
RATE FROM THE CLOSING DATE.
THE HOLDBACK FUND CLAIM MUST BE PAID TO PURCHASER
WITHIN SIXTEEN (16) BUSINESS DAYS AFTER THE NET WORKING CAPITAL ADJUSTMENT
DETERMINATION DATE.
THE CASH PAYMENT MUST BE PAID TO PURCHASER WITHIN FIVE
(5) BUSINESS DAYS AFTER THE NET WORKING CAPITAL ADJUSTMENT DETERMINATION DATE.
TO THE EXTENT THE AMOUNT IN THE HOLDBACK FUND IS INSUFFICIENT, THE ENTIRE NET
WORKING CAPITAL ADJUSTMENT SHALL BE PAID BY SELLER IN CASH.
8
(C)
BILLING UNITS; POST-CLOSING TRUE-UP.
(I)
ON THE 65TH DAY FOLLOWING THE CLOSING
DATE, THE PURCHASE PRICE SHALL BE DECREASED IN THE AMOUNT EQUAL TO THE NEGATIVE
NET SET-OFF AMOUNT, IF ANY.
IF THE NET SET-OFF AMOUNT IS A POSITIVE NUMBER, THE
PURCHASE PRICE SHALL NOT BE INCREASED OR OTHERWISE ADJUSTED.
THE "NET SET-OFF
AMOUNT" IS EQUAL TO THE SUM OF:
(A)
THE PRODUCT OF (A) $58.41, MULTIPLIED BY
(B) THE NUMBER OF NON-BILLING UNITS, IF ANY, THAT START BILLING WITHIN THE SIXTY
(60) DAYS FOLLOWING THE CLOSING DATE.
SCHEDULE 1.6(C)(I) LISTS THE 8,064
INDIVIDUAL APARTMENT, SUITE OR SIMILAR UNITS THAT AT THE CUT-OFF TIME ARE
COVERED BY A SUBMETERING CONTRACT, BUT UNDER WHICH BILLING HAS NOT STARTED AS OF
THAT DATE (THE "NON-BILLING UNITS"); MINUS
(B)
THE PRODUCT OF (A) $58.41, MULTIPLIED BY
(B) THE NUMBER OF UNNOTICED CANCELLED UNITS, IF ANY.
"UNNOTICED CANCELLED
UNITS" ARE BILLING UNITS THAT WERE INCLUDED IN DETERMINING THE BILLING UNITS AT
THE CUT-OFF TIME UNDER SECTION 1.5(B), BUT FOR WHICH A NOTICE OF TERMINATION
(THE