Common use of Determination of Closing Working Capital Clause in Contracts

Determination of Closing Working Capital. (a) Within sixty (60) days after the Closing Date, the Buyers will deliver to the Sellers a certificate (the “Closing Working Capital Certificate”) executed by the Buyers setting forth an itemized statement of Closing Working Capital. (b) If the Sellers deliver written notice (the “Disputed Items Notice”) to the Buyers within thirty (30) days after receipt by the Sellers of the Closing Working Capital Certificate, stating that the Sellers object to any items in the Closing Working Capital Certificate, specifying in reasonable detail the basis for such objection and setting forth the Sellers’ proposed modification to the Closing Working Capital, the Sellers and the Buyers will attempt to resolve and finally determine and agree upon the Closing Working Capital as promptly as practicable. (c) If the Sellers and the Buyers are unable to agree upon the Closing Working Capital within thirty (30) days after delivery of the Disputed Items Notice, an independent, nationally recognized accounting firm reasonably acceptable to the Sellers and the Buyers will resolve the items set forth in the Disputed Items Notice that remain in dispute. The accounting firm shall address only those items that remain in dispute and may not assign a value greater than the greatest value for such item claimed by either Party or smaller than the smallest value for such item claimed by either Party. The determination of the accounting firm will be made within thirty (30) days after being selected and shall constitute an arbitral award that is final, binding and non-appealable and upon which a judgment may be entered by a court having jurisdiction thereover. The fees, costs and expenses of the accounting firm shall be paid one-half by the Sellers and one-half by the Buyers. (d) If the Sellers do not deliver the Disputed Item Notice to the Buyers within thirty (30) days after receipt by the Sellers of the Closing Working Capital Certificate, the Closing Working Capital specified in the Closing Working Capital Certificate will be conclusively presumed to be true and correct in all respects and will be final and binding upon the Parties. (e) At such time as the Closing Working Capital is finally determined or as agreed to by the Buyers and the Sellers in accordance with this Section 1.11 (the “Final Closing Working Capital”), either (i) the Buyers shall pay the Sellers an aggregate amount equal to the excess, if any, of the Final Closing Working Capital over the Estimated Closing Working Capital or (ii) the Sellers (or the Sellers’ Guarantors on behalf of the Sellers) shall pay the Buyers an aggregate amount equal to the excess, if any, of the Estimated Closing Working Capital over the Final Closing Working Capital. (f) The Sellers and their accountants, lawyers and representatives will be given reasonable access during normal business hours to (and shall be allowed to make copies of) the books and records of the Buyers relating to the Business and the Purchased Assets and to any personnel of the Buyers reasonably requested by such persons, in each case in connection with the final determination of the Closing Working Capital or any dispute relating thereto.

Determination of Closing Working Capital. As promptly as ---------------------------------------- practicable after the Closing Date (a) Within sixty but in no event later than ninety (6090) days after the Closing Date), Buyer shall prepare a statement of the Buyers will deliver to the Sellers a certificate (the “Closing Working Capital Certificate”(the "Closing Statement"). The Closing Statement shall be prepared on the same basis as the Estimated Working Capital, which in both cases exclude all intercompany accounts other than Included Intercompany Accounts, Excluded Assets, cash and cash equivalents, Excluded Liabilities and deferred Income Taxes. Seller shall have forty five (45) executed days after receipt to review the Closing Statement and to discuss resolution of the Closing Statement. Seller and its representatives shall be entitled to review the work papers, schedules, memoranda and other documents used by Buyer in preparation of the Buyers setting Closing Statement. If Seller and Buyer agree on the resolution of all matters relating to the Closing Statement within such forty five (45) day period, the Closing Statement shall be final and binding ("Final Statement"), and shall set forth an itemized statement the Working Capital included in the PO/MTBE Assets as of the Effective Date ("Closing Working Capital. (b) "). If the Sellers deliver written notice (the “Disputed Items Notice”) Seller and Buyer shall fail to reach an agreement with respect to all matters relating to the Buyers Closing Statement within such forty five (45) day period, then all disagreements shall be submitted for resolution to the Auditors. The Auditors shall have up to thirty (30) days after receipt by such submission to resolve the Sellers of disputes submitted to the Auditors and shall determine the Closing Working working Capital Certificate, stating that the Sellers object to any items in the Closing Working Capital Certificate, specifying in reasonable detail the basis for such objection and setting forth the Sellers’ proposed modification to the Closing Working Capital, the Sellers and the Buyers will attempt to resolve and finally determine and agree upon the Closing Working Capital as promptly as practicable. (c) If the Sellers and the Buyers are unable to agree upon the Closing Working Capital within thirty (30) days after delivery of the Disputed Items Notice, an independent, nationally recognized accounting firm reasonably acceptable to the Sellers and the Buyers will resolve the items set forth in the Disputed Items Notice that remain in dispute. The accounting firm which determination shall address only those items that remain in dispute and may not assign a value greater than the greatest value for such item claimed by either Party or smaller than the smallest value for such item claimed by either Party. The determination of the accounting firm will be made within thirty (30) days after being selected and shall constitute an arbitral award that is final, binding and non-appealable and upon which a judgment may be entered by a court having jurisdiction thereover. The fees, costs and expenses of the accounting firm shall be paid one-half by the Sellers and one-half by the Buyers. (d) If the Sellers do not deliver the Disputed Item Notice to the Buyers within thirty (30) days after receipt by the Sellers of the Closing Working Capital Certificate, the Closing Working Capital specified in the Closing Working Capital Certificate will be conclusively presumed to be true and correct in all respects and will be final and binding upon on the Parties. (e) At such time as the Closing Working Capital is finally determined or as agreed to . The fees and expenses of Xxxxxx Xxxxxxxx LLP shall be paid by the Buyers Seller and the Sellers in accordance with this Section 1.11 (the “Final Closing Working Capital”), either (i) the Buyers fees and expenses of Deloitte & Touche shall pay the Sellers an aggregate amount equal to the excess, if any, of be paid by Buyer and the Final Closing Working Capital over the Estimated Closing Working Capital or (ii) the Sellers (or the Sellers’ Guarantors on behalf of the Sellers) shall pay the Buyers an aggregate amount equal to the excess, if any, of the Estimated Closing Working Capital over the Final Closing Working Capital. (f) The Sellers and their accountants, lawyers and representatives will be given reasonable access during normal business hours to (and Statement shall be allowed to make copies of) the books and records of the Buyers relating to the Business and the Purchased Assets and to any personnel of the Buyers reasonably requested by such persons, in each case in connection with the final determination of the Closing Working Capital or any dispute relating theretoadjusted accordingly.

Determination of Closing Working Capital. (a) Within sixty As promptly as reasonably practicable following the Closing Date (60but not later than ninety (90) days after the Closing Date), Purchaser shall: (i) determine the Buyers will Closing Working Capital in accordance with the provisions of this Agreement (such Closing Working Capital as determined by Purchaser being called the “Preliminary Working Capital”); and (ii) deliver to the Sellers Seller a certificate setting forth the Preliminary Working Capital (the “Closing Working Capital CertificatePreliminary Accounting Report”) executed by the Buyers setting forth an itemized statement of Closing Working Capital). (b) If Promptly following receipt of the Sellers deliver written notice (Preliminary Accounting Report, Seller may review the “Disputed Items Notice”) to the Buyers same and, within thirty (30) days after receipt the date of such receipt, may deliver to Purchaser a certificate (signed by its chief financial officer or its chief accounting officer) setting forth its objections to the Sellers Preliminary Working Capital as set forth in the Preliminary Accounting Report, together with a summary of the reasons therefor and calculations which, in its view, are necessary to eliminate such objections. If Seller does not so object within such 30-day period, the Preliminary Working Capital set forth in the Preliminary Accounting Report shall be final and binding as the Closing Working Capital Certificatefor purposes of this Agreement but shall not limit the representations, stating that warranties, covenants and agreements of the Sellers object to any items Parties set forth elsewhere in the Closing Working Capital Certificate, specifying in reasonable detail the basis for such objection and setting forth the Sellers’ proposed modification to the Closing Working Capital, the Sellers and the Buyers will attempt to resolve and finally determine and agree upon the Closing Working Capital as promptly as practicablethis Agreement. (c) If Seller so objects within such 30-day period, Purchaser and Seller shall use their respective reasonable efforts to resolve by written agreement (the Sellers “Agreed Adjustments”) any differences as to the Preliminary Working Capital and, if Seller and Purchaser so resolve any such differences, the Buyers are unable to agree upon Preliminary Working Capital set forth in the Preliminary Accounting Report as adjusted by the Agreed Adjustments shall be final and binding as the Closing Working Capital within thirty (30) days after delivery for purposes of this Agreement but shall not limit the representations, warranties, covenants and agreements of the Disputed Items Notice, an independent, nationally recognized accounting firm reasonably acceptable to the Sellers and the Buyers will resolve the items Parties set forth elsewhere in the Disputed Items Notice that remain in dispute. The accounting firm shall address only those items that remain in dispute and may not assign a value greater than the greatest value for such item claimed by either Party or smaller than the smallest value for such item claimed by either Party. The determination of the accounting firm will be made within thirty (30) days after being selected and shall constitute an arbitral award that is final, binding and non-appealable and upon which a judgment may be entered by a court having jurisdiction thereover. The fees, costs and expenses of the accounting firm shall be paid one-half by the Sellers and one-half by the Buyersthis Agreement. (d) If any objections raised by Seller are not resolved by Agreed Adjustments within the Sellers do not 30-day period next following such 30-day period, then Purchaser and Seller shall submit the objections that are then unresolved to Deloitte & Touche LLP, or, if Deloitte & Touche LLP is unwilling or unable to accept such appointment, to another national accounting firm acceptable to both Seller and Purchaser, and such firm (the “Independent Accountant”) shall be directed by Purchaser and Seller to resolve the unresolved objections (based solely on the presentations by Purchaser and by Seller as to whether any disputed matter had been determined in a manner consistent with the Agreed Accounting Principles) as promptly as reasonably practicable and to deliver written notice to each of Purchaser and Seller setting forth its resolution of the Disputed Item Notice disputed matters. The Preliminary Working Capital, after giving effect to any Agreed Adjustments and to the Buyers within thirty (30) days after receipt resolution of disputed matters by the Sellers of Independent Accountant, shall be final and binding as the Closing Working Capital Certificatefor purposes of this Agreement but shall not limit the representations, warranties, covenants and agreements of the Closing Working Capital specified Parties set forth elsewhere in the Closing Working Capital Certificate will be conclusively presumed to be true and correct in all respects and will be final and binding upon the Partiesthis Agreement. (e) At The Parties hereto shall make available to Purchaser, Seller and, if applicable, the Independent Accountant, such time books, records and other information (including work papers) as any of the Closing Working Capital is finally determined foregoing may reasonably request to prepare or as agreed to by review the Buyers and the Sellers in accordance with this Section 1.11 (the “Final Closing Working Capital”), either (i) the Buyers shall pay the Sellers an aggregate amount equal Preliminary Accounting Report or any matters submitted to the excess, if any, Independent Accountant. The fees and expenses of the Final Closing Working Capital over the Estimated Closing Working Capital or (ii) the Sellers (or the Sellers’ Guarantors on behalf of the Sellers) shall pay the Buyers an aggregate amount equal to the excess, if any, of the Estimated Closing Working Capital over the Final Closing Working Capital. (f) The Sellers and their accountants, lawyers and representatives will be given reasonable access during normal business hours to (and Independent Accountant hereunder shall be allowed to make copies of) the books paid 50% by Purchaser and records of the Buyers relating to the Business and the Purchased Assets and to any personnel of the Buyers reasonably requested 50% by such persons, in each case in connection with the final determination of the Closing Working Capital or any dispute relating theretoSeller.

Determination of Closing Working Capital. (a) Within sixty (60) days As promptly as practicable after the Closing DateDate (but in any event not more than ninety (90) days thereafter), the Buyers will Parent shall deliver to the Sellers Sellers: (i) a certificate combined balance sheet of the Companies as of the time of the Closing which shall be prepared in a manner consistent with the definition of Working Capital herein and otherwise in accordance with GAAP consistently applied with respect to the Audited Financial Statements of the Companies referred to in Section 3.08 hereof, but without giving effect to the Mergers, any matters occurring simultaneously with the Closing pursuant to this Agreement (other than any amount that may be paid at or prior to the Closing, as contemplated by Section 5.5 hereof) or any matters occurring after the Closing; and (ii) a calculation (which shall be based on and consistent with the combined balance sheet delivered pursuant to item (i) of this Section 2.3(a)) in reasonable detail setting forth the Parent’s calculation of the Working Capital of the Companies as of the Closing (the “Closing Working Capital CertificateCapital”) executed by the Buyers setting forth an itemized statement of Closing Working Capital). (b) The Sellers shall have thirty (30) days after delivery to them of the Parent’s deliveries pursuant to Section 2.2(a) (the “Review Period”) to review such Parent deliveries. If the Sellers deliver do not agree with the amount of the Closing Working Capital as calculated by the Parent pursuant to Section 2.2(a), the Seller Group Representative shall, within the Review Period, give the Parent a written notice (the a “Disputed Items Dispute Notice”) setting forth (i) the amount the Sellers believe to be the Closing Working Capital and showing the differences, category-by-category, and (ii) a reasonably detailed explanation of the basis of the Sellers’ calculation of such amount. If the Seller Group Representative indicates in writing that the Sellers do not object to the Buyers Closing Working Capital as calculated by the Parent, or if the Seller Group Representative fails to deliver a Dispute Notice to the Parent within the Review Period, the Closing Working Capital as calculated by the Parent shall be deemed to have been accepted by the Sellers in the form in which it was delivered by the Parent and shall be final, conclusive and binding upon the parties for all purposes and not subject to appeal on any ground, absent mathematical error or fraud, and judgment on such amount of Closing Working Capital, and any resulting obligation of either the Parent or the Sellers to pay the other party any amount pursuant to Section 2.4 may be enforced in any court having jurisdiction over the subject matter of the controversy. (c) If a Dispute Notice shall be timely delivered by the Seller Group Representative to the Parent, the Seller Group Representative and the Parent shall, within thirty (30) days after receipt by such delivery, promptly and in good faith attempt to resolve the Sellers matters set forth therein and agree in writing upon the final amount of the Closing Working Capital CertificateCapital. If the Seller Group Representative and the Parent are unable to resolve the matters in dispute within that 30-day resolution period, stating that then the Panel of Accountants (as defined in Section 2.3(e) hereof) shall be employed to arbitrate and resolve such matters as soon as reasonably practicable. Any arbitration pursuant to this Section 2.3(c) and Section 2.3(d) hereof shall be conducted in New York City, or by telephonic conference call if acceptable to the Panel of Accountants. The Sellers object and the Parent shall each execute and deliver such retention agreements as the Panel of Accountants may reasonably require in connection with its services pursuant to any this Section 2.3(c). (d) The Panel of Accountants shall be instructed to promptly review the applicable provisions of this Agreement and shall only consider those items in the Parent’s calculation of Closing Working Capital Certificatethat are expressly identified as items of dispute in the Dispute Notice. The Panel of Accountants shall, specifying as promptly as practicable, deliver to the Parent and the Seller Group Representative a report setting forth any adjustments to such disputed items in reasonable detail the basis for Parent delivery necessary to make such objection items conform to the requirements of this Section 2, and setting forth the Sellers’ proposed modification to amount of the Closing Working Capital, the Sellers and the Buyers will attempt to resolve and finally determine and agree upon the Closing Working Capital as promptly as practicable. (c) If the Sellers and the Buyers are unable to agree upon the Closing Working Capital within thirty (30) days after delivery of the Disputed Items Notice, an independent, nationally recognized accounting firm reasonably acceptable to the Sellers and the Buyers will resolve the items set forth in the Disputed Items Notice that remain in dispute. The accounting firm shall address only those items that remain in dispute and may not assign a value greater than the greatest value for such item claimed by either Party or smaller than the smallest value for such item claimed by either Party. The determination of the accounting firm will Panel of Accountants with respect to such matters shall be made within thirty (30) days after being selected and shall constitute an arbitral award that is final, binding and non-appealable and upon which a judgment may be entered by a court having jurisdiction thereover. The fees, costs and expenses of the accounting firm shall be paid one-half by the Sellers and one-half by the Buyers. (d) If the Sellers do not deliver the Disputed Item Notice to the Buyers within thirty (30) days after receipt by the Sellers of the Closing Working Capital Certificate, the Closing Working Capital specified in the Closing Working Capital Certificate will be conclusively presumed to be true and correct in all respects and will be final conclusive and binding upon the Parties. (e) At such time as parties and not subject to appeal on any ground, absent mathematical error or fraud, and judgment on the Closing Working Capital is finally determined determination, and any resulting obligation of either the Parent or as agreed to by the Buyers and the Sellers in accordance with this Section 1.11 (the “Final Closing Working Capital”), either (i) the Buyers shall to pay the Sellers an aggregate other party any amount equal to under Section 2.4, may be enforced in any court having jurisdiction over the excess, if any, subject matter of the Final Closing Working Capital over the Estimated Closing Working Capital or (ii) the Sellers (or the Sellers’ Guarantors on behalf of the Sellers) shall pay the Buyers an aggregate amount equal to the excess, if any, of the Estimated Closing Working Capital over the Final Closing Working Capitalcontroversy. (f) The Sellers and their accountants, lawyers and representatives will be given reasonable access during normal business hours to (and shall be allowed to make copies of) the books and records of the Buyers relating to the Business and the Purchased Assets and to any personnel of the Buyers reasonably requested by such persons, in each case in connection with the final determination of the Closing Working Capital or any dispute relating thereto.

Determination of Closing Working Capital. (a) Within sixty Promptly after the Closing Date, and in any event not later than forty-five (6045) days following the Closing Date, Purchaser shall prepare and deliver to Seller a statement (the “Closing Working Capital Statement”) setting forth Purchaser’s good faith calculation of the amount of Closing Working Capital. If a Closing Working Capital Statement is not delivered by Purchaser within forty-five (45) days after the Closing Date, the Buyers will deliver to the Sellers a certificate (the “Closing Working Capital Certificate”) executed by the Buyers setting forth an itemized statement of Closing Working Capital. (b) If the Sellers deliver written notice (the “Disputed Items Notice”) to the Buyers within thirty (30) days after receipt by the Sellers of then the Closing Working Capital Certificate, stating that shall be deemed to be equal to the Sellers object to any items in the Closing Target Working Capital Certificate, specifying in reasonable detail the basis for such objection and setting forth the Sellers’ proposed modification to the Closing Working Capital, the Sellers and the Buyers will attempt to resolve and finally determine and agree upon the Closing Working Capital as promptly as practicable. (c) If the Sellers and the Buyers are unable to agree upon the Closing Working Capital within thirty (30) days after delivery of the Disputed Items Notice, an independent, nationally recognized accounting firm reasonably acceptable to the Sellers and the Buyers will resolve the items set forth in the Disputed Items Notice that remain in dispute. The accounting firm shall address only those items that remain in dispute and may not assign a value greater than the greatest value for such item claimed by either Party or smaller than the smallest value for such item claimed by either Party. The determination of the accounting firm will be made within thirty (30) days after being selected and shall constitute an arbitral award that is be final, binding and non-appealable and upon which a judgment may be entered by a court having jurisdiction thereover. The fees, costs and expenses of the accounting firm shall be paid one-half by the Sellers and oneParties, unless, following such failure by Purchaser to deliver a Closing Working Capital Statement within forty-half by five (45) days after the BuyersClosing, Seller elects (in its sole discretion) to deliver a Closing Working Capital Statement to Purchaser no later than forty-five (45) days after such initial forty-five (45) day period. (db) If Seller (or, in the Sellers do event that Seller delivered the Closing Working Capital Statement, Purchaser) does not deliver the Disputed Item Notice object to the Buyers Closing Working Capital Statement by written notice of objection (the “Notice of Objection”) delivered to Purchaser (or, in the event that Seller delivered the Closing Working Capital Statement, Purchaser) within thirty forty-five (3045) days after receipt by the Sellers delivery of the Closing Working Capital CertificateStatement, the calculation of Closing Working Capital specified set forth in the Closing Working Capital Certificate will Statement shall be conclusively presumed to be true and correct in all respects and will be deemed final and binding upon binding. A Notice of Objection shall set forth in reasonable detail Seller’s (or, in the Parties. (e) At such time as event that Seller delivered the Closing Working Capital is finally determined or as agreed to by the Buyers and the Sellers in accordance with this Section 1.11 (the “Final Closing Working Capital”)Statement, either (iPurchaser’s) the Buyers shall pay the Sellers an aggregate amount equal to the excess, if any, alternative calculations of the Final Closing Working Capital over the Estimated Closing Working Capital or (ii) the Sellers (or the Sellers’ Guarantors on behalf amount of the Sellers) shall pay the Buyers an aggregate amount equal to the excess, if any, of the Estimated Closing Working Capital over the Final Closing Working Capital. (f) The Sellers and their accountants, lawyers and representatives will be given reasonable access during normal business hours to (and shall be allowed to make copies of) the books and records of the Buyers relating to the Business and the Purchased Assets and to any personnel of the Buyers reasonably requested by such persons, in each case in connection with the final determination of the Closing Working Capital or any dispute relating thereto.

Determination of Closing Working Capital. (a) Within sixty (60) days after Simultaneously with the delivery of the Closing DateDate Balance Sheet pursuant to Section 3.1 hereof, the Buyers will deliver Buyer shall furnish to the Sellers Sellers' Representative a certificate (the “Closing Working Capital Certificate”) executed by the Buyers setting forth an itemized statement of Closing Working Capital. (b) If the Sellers deliver written notice (the “Disputed Items "Notice”") to the Buyers within thirty (30) days after receipt by the Sellers of the Closing Working Capital Certificate, stating that the Sellers object to any items in the Closing Working Capital Certificate, specifying in reasonable detail the basis for such objection and setting forth the Sellers’ proposed modification to the Closing Working Capital, the Sellers and the Buyers will attempt to resolve and finally determine and agree upon which notice shall include such information indicating how the Closing Working Capital was calculated, together with copies of the General Partners' and Partnership's (as promptly as practicable. (capplicable) If work papers relating to the Sellers preparation of the Closing Date Balance Sheet and the Buyers are unable to agree upon the calculation of Closing Working Capital. The Closing Working Capital within thirty (30) days after delivery of the Disputed Items Notice, an independent, nationally recognized accounting firm reasonably acceptable to the Sellers and the Buyers will resolve the items set forth in the Disputed Items Notice that remain in dispute. The accounting firm shall address only those items that remain in dispute and may not assign a value greater than the greatest value for such item claimed by either Party or smaller than the smallest value for such item claimed by either Party. The determination of the accounting firm will be made within thirty (30) days after being selected and shall constitute an arbitral award that is final, binding and non-appealable and upon which a judgment may be entered by a court having jurisdiction thereover. The fees, costs and expenses of the accounting firm shall be paid one-half by the Sellers and one-half by the Buyers. (d) If the Sellers do not deliver the Disputed Item Notice to the Buyers within thirty (30) days after receipt by the Sellers of the Closing Working Capital Certificate, the Closing Working Capital specified in the Closing Working Capital Certificate will be conclusively presumed to be true and correct in all respects and will be final and binding upon the Parties. (e) At such time as parties unless the Closing Working Capital is finally determined or as agreed Sellers' Representative gives written notice to by the Buyers and the Sellers in accordance with this Section 1.11 Buyer of his objection thereto (the “Final Closing Working Capital”), either (i"Notice of Objection") the Buyers shall pay the Sellers an aggregate amount equal to the excess, if any, within 20 days following delivery of the Final Closing Working Capital over the Estimated Closing Working Capital or (ii) the Sellers (or Notice. Any such Notice of Objection shall state the Sellers’ Guarantors on behalf of the Sellers) shall pay the Buyers an aggregate amount equal to the excess, if any, of the Estimated Closing Working Capital over the Final Closing Working Capital. (f) The Sellers and their accountants, lawyers and representatives will be given reasonable access during normal business hours to (and shall be allowed to make copies of) the books and records of the Buyers relating to the Business and the Purchased Assets and to any personnel of the Buyers reasonably requested by such persons, in each case in connection with the final ' Representative's determination of the Closing Working Capital or in reasonable detail. The Buyer and the Sellers' Representative shall attempt to resolve in good faith any dispute relating theretodifferences they may have with respect to any matter specified in any Notice of Objection and reach a written agreement (the "Settlement") with respect to the Closing Working Capital within ten days following delivery of any Notice of Objection. If the Buyer and the Sellers' Representative are unable to reach a Settlement within such ten-day period, the matters specified in the Notice of Objection shall be referred for determination as promptly as practicable to a nationally recognized accounting firm mutually selected by the Buyer and the Sellers' Representative within three Business Days after the expiration of such ten-day period, or, if the Sellers' Representative and the Buyer cannot so agree within such three-Business Day period, such firm shall be selected by lot from among the "Big 6" independent certified public accounting firms in the United States, other than the Buyer's Accountants and the Sellers' Accountants (the "Accountants"). The Accountants' determination (the "Final Determination") shall be (i) in writing, (ii) delivered to the Buyer and the Sellers' Representative and (iii) conclusive and binding upon the parties. The fees and expenses of the Accountants shall be borne equally by the Buyer and the Sellers.

Determination of Closing Working Capital. (a) Within sixty Promptly after the Closing Date, and in any event not later than forty-five (6045) days following the Closing Date, Purchaser shall prepare and deliver to Seller a statement (the “Closing Working Capital Statement”) setting forth Purchaser’s good faith calculation of the amount of Closing Working Capital. If a Closing Working Capital Statement is not delivered by Purchaser within forty-five (45) days after the Closing Date, then the Buyers will deliver Closing Working Capital shall be deemed to be equal to the Sellers Target Working Capital and shall be final, binding and non-appealable by the Parties, unless, following such failure by Purchaser to deliver a certificate Closing Working Capital Statement within forty-five (45) days after the Closing, Seller elects (in its sole discretion) to deliver a Closing Working Capital Statement to Purchaser no later than forty-five (45) days after such initial forty-five (45) day period. (b) If Seller (or, in the event that Seller delivered the Closing Working Capital Statement, Purchaser) does not object to the Closing Working Capital Statement by written notice of objection (the “Notice of Objection”) delivered to Purchaser (or, in the event that Seller delivered the Closing Working Capital Certificate”Statement, Purchaser) executed by within forty-five (45) days after delivery of the Buyers setting Closing Working Capital Statement, the calculation of Closing Working Capital set forth an itemized statement in the Closing Working Capital Statement shall be deemed final and binding. A Notice of Objection shall set forth in reasonable detail Seller’s (or, in the event that Seller delivered the Closing Working Capital Statement, Purchaser’s) alternative calculations of the amount of Closing Working Capital. (bc) If a Notice of Objection is delivered in accordance with Section 2.7(b), then any dispute regarding such amount (all such disputed amounts, the Sellers deliver “Disputed Amounts”) shall be resolved as follows: (A) Seller and Purchaser shall promptly endeavor in good faith to resolve the Disputed Amounts listed in the Notice of Objection. In the event that a written notice agreement determining the Disputed Amounts has not been reached within ten (10) Business Days (or such longer period as may be agreed by Seller and Purchaser) after the date of receipt of the Notice of Objection, the resolution of such Disputed Amounts may be submitted by either Party to PricewaterhouseCoopers LLP or another independent accounting firm mutually acceptable to Seller and Purchaser (the “Disputed Items NoticeArbitrator”); (B) Seller and Purchaser shall use their commercially reasonable efforts to cause the Buyers Arbitrator to render a decision in accordance with this Section 2.7(c) along with a statement of reasons therefor within thirty (30) days after receipt by the Sellers of the Closing Working Capital Certificate, stating that the Sellers object to any items in the Closing Working Capital Certificate, specifying in reasonable detail the basis for such objection and setting forth the Sellers’ proposed modification to the Closing Working Capital, the Sellers and the Buyers will attempt to resolve and finally determine and agree upon the Closing Working Capital as promptly as practicable. (c) If the Sellers and the Buyers are unable to agree upon the Closing Working Capital within thirty (30) days after delivery submission of the Disputed Items NoticeAmounts, an independentor a reasonable time thereafter, nationally recognized accounting firm reasonably acceptable to the Sellers Arbitrator. The decision of the Arbitrator shall be final and binding upon each Party and the Buyers will resolve the items set forth in the Disputed Items Notice that remain in dispute. The accounting firm shall address only those items that remain in dispute and may not assign a value greater than the greatest value for such item claimed by either Party or smaller than the smallest value for such item claimed by either Party. The determination decision of the accounting firm will be made within thirty (30) days after being selected and Arbitrator shall constitute an arbitral award that is final, binding and non-appealable and upon which a judgment may be entered by a court having jurisdiction thereover. The fees; (C) in the event Seller and Purchaser submit any Disputed Amounts to the Arbitrator for resolution, Seller and Purchaser shall each pay their own costs and expenses incurred under this Section 2.7(c). Seller shall be responsible for that fraction of the accounting firm fees and costs of the Arbitrator equal to (1) the absolute value of the difference between Seller’s aggregate position with respect to the Disputed Amounts and the Arbitrator’s final determination with respect to the Disputed Amounts over (2) the absolute value of the difference between Seller’s aggregate position with respect to the Disputed Amounts and Purchaser’s aggregate position with respect to the Disputed Amounts, and Purchaser shall be paid one-half responsible for the remainder of such fees and costs; (D) the Arbitrator shall act as an arbitrator to determine, based upon the provisions of this Section 2.7(c), only the Disputed Amounts and the determination of each amount of the Disputed Amounts shall be made in accordance with the procedures set forth in Section 2.7(a) and, in any event the resulting amount of Closing Working Capital shall be no less than the lesser of the amount claimed by either Seller or Purchaser, and shall be no greater than the greater of the amount claimed by either Seller or Purchaser; and (E) the process set forth in this Section 2.7(c) shall be the exclusive remedy of the Parties for any disputes related to items reflected on the Closing Working Capital Statement or covered by the Sellers calculation of Closing Working Capital, whether or not the underlying facts and one-half by circumstances constitute a breach of any representations, warranties or covenants contained in this Agreement; provided, that any dispute regarding the Buyers.interpretation of this Agreement, as opposed to the calculation of Disputed Amounts or the methodology of such calculation, shall not be subject to the process set forth in this Section 2.7(c) but shall be subject to the dispute mechanisms set forth in Article X. (d) If Upon the Sellers do not deliver determination, in accordance with Sections 2.7(b) or 2.7(c), of the Disputed Item Notice to final calculation of the Buyers within thirty (30) days after receipt by the Sellers amount of the Closing Working Capital CertificateCapital, if the Closing Working Capital specified is greater than the Target Working Capital, then Purchaser shall promptly, but in any event within three (3) Business Days after the Closing Working Capital Certificate will be conclusively presumed final determination thereof, pay by wire transfer of immediately available funds, to be true and correct an account designated by Seller an amount in all respects and will be final and binding upon the Partiescash equal to such difference. (e) At such time as Upon the determination, in accordance with Sections 2.7(b) or 2.7(c), of the final calculation of the amount of the Closing Working Capital, if the Closing Working Capital is finally determined or as agreed to by less than the Buyers and the Sellers in accordance with this Section 1.11 (the “Final Closing Target Working Capital”), either then Seller shall promptly, but in any event within three (i3) Business Days after the Buyers shall final determination thereof, pay the Sellers by wire transfer of immediately available funds, to an aggregate account designated by Purchaser an amount in cash equal to the excess, if any, of the Final Closing Working Capital over the Estimated Closing Working Capital or (ii) the Sellers (or the Sellers’ Guarantors on behalf of the Sellers) shall pay the Buyers an aggregate amount equal to the excess, if any, of the Estimated Closing Working Capital over the Final Closing Working Capitalsuch difference. (f) The Sellers Closing Working Capital Statement (and all calculations of Closing Working Capital) shall be prepared and calculated in accordance with GAAP, except that the Closing Working Capital Statement (and all calculations of Closing Working Capital) shall: (i) not include any purchase accounting or other adjustment arising out of the consummation of the transactions contemplated by this Agreement and (ii) be based on facts and circumstances as they exist prior to the Closing and shall exclude the effect of any act, decision or event occurring on or after the Closing. (g) Following the Closing, Purchaser shall and shall cause the Company, and their accountantsrespective officers, lawyers employees, consultants, accountants and representatives will be given reasonable access during normal business hours to (agents to, reasonably cooperate with Seller and shall be allowed to make copies of) the books and records of the Buyers relating to the Business and the Purchased Assets and to any personnel of the Buyers reasonably requested by such persons, in each case its accountants in connection with the final determination of the Closing Working Capital pursuant to this Section 2.7 and to provide reasonable information requested by Seller and its accountants in connection therewith; provided, that in the event Purchaser or any dispute relating theretothe Company fails to abide by the provisions of this Section 2.7(g), the length of time of such failure shall be added to the time period in which Seller has to perform its obligations under this Section 2.7.

Determination of Closing Working Capital. (a) Within sixty As of the Closing Date, Buyer shall conduct an audit and examination of the Purchased Assets and the Assumed Liabilities (60the "Closing Audit") at Buyer's sole cost and expense. The Seller, at its sole cost and expense, may have a representative participate in the taking of the physical inventory in connection with the Closing Audit. On the basis of such Closing Audit, Buyer shall prepare with the assistance of Seller personnel as requested by Buyer a balance sheet as of the Closing Date (the "Closing Balance Sheet") including a computation of Working Capital, as of the Closing Date, of the Business, in accordance with GAAP except as set forth in Schedule 2.8 applied consistently with the accounting policies and procedures followed, and utilizing similar classifications used, in preparing the Balance Sheet, provided such policies and procedures are in accordance with GAAP except as set forth in Schedule 2.8. Buyer shall deliver the Closing Balance Sheet to the Seller not later than 45 days after the Closing Date. Each Party (the "Reviewed Party") shall, upon the Buyers will deliver request of the other party (the "Requesting Party"), provide the Requesting Party's representatives with reasonable access to the Sellers Reviewed Party's accountants and, to the extent permitted by internal rules and procedures of the Reviewed Party's accountants, use its reasonable best efforts to provide equal access to such accountant's work papers at such accountant's place of business and in such accountant's presence, in order to facilitate the Requesting Party's review of such Closing Balance Sheet. In preparing such Closing Balance Sheet, inventory shall be valued on a certificate (basis consistent with the “Closing Working Capital Certificate”) executed by inventory valuation in the Buyers setting forth an itemized statement of Closing Working CapitalBalance Sheet. (b) If the Sellers deliver written notice Seller disputes the computation of Working Capital set forth on the Closing Balance Sheet as delivered by Buyer, then not more than 20 days after the date the Seller receives the Closing Balance Sheet the Seller shall provide to Buyer a Notice of Dispute. Upon receipt of the Notice of Dispute, Buyer shall promptly consult with the Seller with respect to its specified points of disagreement in an effort to resolve the dispute. If any such dispute cannot be resolved by Buyer and the Seller within 20 days after Buyer receives the Notice of Dispute, or any mutually agreed upon extension to such period, they shall refer the dispute to a partner in and designated by Arthxx Xxxexxxx XXX, certified public accountants (the “Disputed Items Notice”) "Arbiter"), as an arbitrator to finally determine, as soon as practicable, and in any event within 30 days after such referral, all points of disagreement with respect to the Buyers within thirty (30) days after receipt computation of Working Capital set forth on the Closing Balance Sheet. The Parties represent and warrant that neither of them has a material pre-existing relationship with the Arbiter. For purposes of such arbitration each Party shall submit a proposed computation of Working Capital; Buyer's proposals need not be identical to the computation of Working Capital set forth on the Closing Balance Sheet and delivered pursuant to Section 2.8(a). Any items included in Buyer's computation of Working Capital not specifically disputed by Seller shall be deemed accepted and not subject to arbitration. The Arbiter shall apply the Sellers terms of this Section 2.8 and the other relevant provisions of this Agreement, and shall otherwise conduct the arbitration under such procedures as the Parties may agree or, failing such agreement, under the Commercial Arbitration Rules of the Closing American Arbitration Association. Upon the conclusion of the arbitration proceeding, the Arbiter shall choose either Buyer's computation of Working Capital Certificate, stating that the Sellers object to any items in the Closing Working Capital Certificate, specifying in reasonable detail the basis for such objection and setting forth the Sellers’ proposed modification to the Closing or Seller's computation. The Arbiter shall not independently calculate Working Capital, the Sellers and the Buyers will attempt to resolve and finally determine and agree upon the Closing Working Capital as promptly as practicable. (c) If the Sellers and the Buyers are unable to agree upon the Closing Working Capital within thirty (30) days after delivery of the Disputed Items Notice, an independent, nationally recognized accounting firm reasonably acceptable to the Sellers and the Buyers will resolve the items set forth in the Disputed Items Notice that remain in dispute. The accounting firm shall address only those items that remain in dispute and may not assign a value greater than the greatest value for such item claimed by either Party or smaller than the smallest value for such item claimed by either Party. The determination of the accounting firm will be made within thirty (30) days after being selected and shall constitute an arbitral award that is final, binding and non-appealable and upon which a judgment may be entered by a court having jurisdiction thereover. The fees, costs fees and expenses of the accounting firm shall be paid one-half by the Sellers and one-half by the Buyers. (d) If the Sellers do not deliver the Disputed Item Notice to the Buyers within thirty (30) days after receipt by the Sellers of the Closing Working Capital Certificate, the Closing Working Capital specified in the Closing Working Capital Certificate will be conclusively presumed to be true and correct in all respects and will be final and binding upon the Parties. (e) At such time as the Closing Working Capital is finally determined or as agreed to by the Buyers arbitration and the Sellers in accordance with this Section 1.11 (the “Final Closing Working Capital”), either (i) the Buyers shall pay the Sellers an aggregate amount equal to the excess, if any, of the Final Closing Working Capital over the Estimated Closing Working Capital or (ii) the Sellers (or the Sellers’ Guarantors on behalf of the Sellers) shall pay the Buyers an aggregate amount equal to the excess, if any, of the Estimated Closing Working Capital over the Final Closing Working Capital. (f) The Sellers and their accountants, lawyers and representatives will be given reasonable access during normal business hours to (and shall be allowed to make copies of) the books and records of the Buyers relating to the Business and the Purchased Assets and to any personnel of the Buyers reasonably requested by such persons, in each case Arbiter incurred in connection with the final determination arbitration of the Closing computation of Working Capital shall be paid by the non-prevailing party; provided, that such fees and expenses shall not include, so long as a Party complies with the procedures of this Section 2.8, the other Party's outside counsel or any dispute relating theretoaccounting fees. All determinations by the Arbiter shall be final, conclusive, binding and not subject to judicial review or appeal with respect to the computation of Working Capital and the allocation of arbitration fees and expenses.