Common use of Determination of Closing Working Capital Clause in Contracts

Determination of Closing Working Capital. As promptly as ---------------------------------------- practicable after the Closing Date (but in no event later than ninety (90) days after the Closing Date), Buyer shall prepare a statement of the Closing Working Capital (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) 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 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 the Working Capital included in the PO/MTBE Assets as of the Effective Date ("Closing Working Capital"). If Seller and Buyer shall fail to reach an agreement with respect to all matters relating to the 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 such submission to resolve the disputes submitted to the Auditors and shall determine the Closing working Capital which determination shall be final and binding on the Parties. The fees and expenses of Xxxxxx Xxxxxxxx LLP shall be paid by Seller and the fees and expenses of Deloitte & Touche shall be paid by Buyer and the Final Statement shall be adjusted accordingly.

Determination of Closing Working Capital. (a) As promptly of the Closing Date, Buyer shall conduct an audit and examination of the Purchased Assets and the Assumed Liabilities (the 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 ---------------------------------------- practicable after requested by Buyer a balance sheet as of the Closing Date (but the Closing Balance Sheet ) including a computation of Working Capital, as of the Closing Date, of the Business, in no event 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 ninety (90) 45 days after the Closing Date. Each Party (the Reviewed Party ) shall, upon the request of the other party (the Requesting Party ), provide the Requesting Party s representatives with reasonable access to the 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 basis consistent with the inventory valuation in the Balance Sheet. (b) If the 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 prepare 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 statement partner in and designated by Arthur Andersen LLX, xxxtxxxxx xxblic accountants (the 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 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 Statement"Balance Sheet and delivered pursuant to Section 2.8(a). The Closing Statement Any items included in Buyer s computation of Working Capital not specifically disputed by Seller shall be prepared on deemed accepted and not subject to arbitration. The Arbiter shall apply the same basis as terms of this Section 2.8 and 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) days after receipt to review the Closing Statement and to discuss resolution relevant provisions 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 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")this Agreement, and shall set forth otherwise conduct the arbitration under such procedures as the Parties may agree or, failing such agreement, under the Commercial Arbitration Rules of the American Arbitration Association. Upon the conclusion of the arbitration proceeding, the Arbiter shall choose either Buyer s computation of Working Capital included in the PO/MTBE Assets as of the Effective Date ("Closing or Seller s computation. The Arbiter shall not independently calculate Working Capital"). If Seller and Buyer shall fail to reach an agreement with respect to all matters relating to the 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 such submission to resolve the disputes submitted to the Auditors and shall determine the Closing working Capital which determination shall be final and binding on the Parties. The fees and expenses of Xxxxxx Xxxxxxxx LLP the arbitration and the Arbiter incurred in connection with the arbitration of the computation of Working Capital shall be paid by Seller and the non-prevailing party; provided, that such fees and expenses shall not include, so long as a Party complies with the procedures of Deloitte & Touche this Section 2.8, the other Party's outside counsel or accounting fees. All determinations by the Arbiter shall be paid by Buyer final, conclusive, binding and not subject to judicial review or appeal with respect to the computation of Working Capital and the Final Statement shall be adjusted accordingly.allocation of arbitration fees and expenses. 2.9

Determination of Closing Working Capital. As promptly as ---------------------------------------- practicable after Simultaneously with the delivery of the Closing Date Balance Sheet pursuant to Section 3.1 hereof, the Buyer shall furnish to the Sellers' Representative a notice (but in no event later than ninety (90the "Notice") days after setting forth the Closing Date)Working Capital, 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 applicable) work papers relating to the preparation of the Closing Date Balance Sheet and the calculation of Closing Working Capital. The Closing Working Capital set forth in the Notice shall be final and binding upon the parties unless the Sellers' Representative gives written notice to the Buyer of his objection thereto (the "Notice of Objection") within 20 days following delivery of the Notice. Any such Notice of Objection shall prepare a statement state the Sellers' Representative's determination of the Closing Working Capital in reasonable detail. The Buyer and the Sellers' Representative shall attempt to resolve in good faith any differences 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 StatementWorking 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 Closing Statement Accountants' determination (the "Final Determination") shall be prepared on the same basis as the Estimated Working Capital(i) in writing, 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 (45ii) 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 Closing Statement. If Seller and Buyer agree on the resolution of all matters relating delivered to the Closing Statement within such forty five Buyer and the Sellers' Representative and (45iii) day period, the Closing Statement shall be final conclusive and binding ("Final Statement"), and shall set forth upon the Working Capital included in the PO/MTBE Assets as of the Effective Date ("Closing Working Capital"). If Seller and Buyer shall fail to reach an agreement with respect to all matters relating to the 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 such submission to resolve the disputes submitted to the Auditors and shall determine the Closing working Capital which determination shall be final and binding on the Partiesparties. The fees and expenses of Xxxxxx Xxxxxxxx LLP the Accountants shall be paid borne equally by Seller and the fees and expenses of Deloitte & Touche shall be paid by Buyer and the Final Statement shall be adjusted accordinglySellers.

Determination of Closing Working Capital. (a) As promptly of the Closing Date, Buyer shall conduct an audit and examination of the Purchased Assets and the Assumed Liabilities (the "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 ---------------------------------------- practicable after requested by Buyer a balance sheet as of the Closing Date (but the "Closing Balance Sheet") including a computation of Working Capital, as of the Closing Date, of the Business, in no event 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 ninety (90) 45 days after the Closing Date), Buyer shall prepare a statement of the Closing Working Capital . Each Party (the "Closing StatementReviewed Party"). The Closing Statement shall be prepared on ) shall, upon 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) days after receipt to review the Closing Statement and to discuss resolution request of the Closing Statement. Seller and its representatives shall be entitled to review other party (the work papers, schedules, memoranda and other documents used by Buyer in preparation of the 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 StatementRequesting Party"), provide the Requesting Party's representatives with reasonable access to the 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 set forth be valued on a basis consistent with the Working Capital included inventory valuation in the PO/MTBE Assets as of the Effective Date ("Closing Working Capital"). If Seller and Buyer shall fail to reach an agreement with respect to all matters relating to the 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 such submission to resolve the disputes submitted to the Auditors and shall determine the Closing working Capital which determination shall be final and binding on the Parties. The fees and expenses of Xxxxxx Xxxxxxxx LLP shall be paid by Seller and the fees and expenses of Deloitte & Touche shall be paid by Buyer and the Final Statement shall be adjusted accordinglyBalance Sheet.