Common use of Preparation of Closing Date Statement Clause in Contracts

Preparation of Closing Date Statement. (i) Within 45 days after the Closing Date, Seller shall deliver to Buyer a consolidated balance sheet of the Business as of the Closing Date (the “Closing Balance Sheet”), together with a written statement (the “Closing Date Statement”) setting forth in reasonable detail (A) Seller’s determination of the Closing Working Capital and (B) the amount of any adjustment to the Purchase Price to be paid and by whom pursuant to §2.6(c) and the basis therefor. The Closing Balance Sheet shall be prepared in accordance with the Accounting Standards, applied in a manner consistent with the preparation of the Interim Balance Sheet, without giving effect to the changes to the balance sheet as a result of the transactions contemplated hereby. (ii) Following the Closing, each of Buyer and Seller shall give the other party reasonable access at all reasonable times to the properties, books, records and personnel of the Business for purposes of preparing, reviewing and resolving any disputes concerning the Closing Date Statement. Buyer shall have 30 days following the delivery to Buyer of the Closing Date Statement during which to provide written notice to Seller of any dispute of any item contained in the Closing Balance Sheet or Closing Date Statement (a “Notice of Disagreement”), which notice shall set forth in reasonable detail any item on the Closing Balance Sheet and/or the Closing Date Statement that Buyer believes (a) has not been prepared in accordance with the Accounting Standards, applied in a manner consistent with the preparation of the Interim Balance Sheet, or in accordance with the definition of Closing Working Capital set forth herein, or (b) contains a mathematical error. If Buyer fails to provide a Notice of Disagreement to Seller within such 30-day period, the Closing Balance Sheet and the Closing Date Statement shall be conclusive and binding on the Parties. In the event that Buyer shall provide a Notice of Disagreement to Seller within such 30-day period, Buyer and Seller shall cooperate in good faith to resolve the dispute as promptly as possible. (iii) If Buyer timely provides a Notice of Disagreement to Seller, and if Buyer and Seller fail to resolve the dispute with respect to the Closing Balance Sheet, the Closing Date Statement and the calculation of the Closing Working Capital within thirty 30 days of Seller’s receipt of the Notice of Disagreement, Buyer and Seller shall submit the issues remaining in dispute to Ernst & Young LLP (the “Independent Accountants”) for resolution applying the Accounting Standards; provided, however, that the Independent Accountants shall be limited to selecting either the Closing Working Capital amount reflected on Seller’s Closing Statement or the Closing Working Capital amount reflected on the Notice of Disagreement submitted by Buyer. If issues are submitted to the Independent Accountants for resolution, (A) Buyer and Seller shall furnish or cause to be furnished to the Independent Accountants such work papers and other documents and information relating to the disputed issues as the Independent Accountants may request and are available to that party or its agents and shall be afforded the opportunity to present to the Independent Accountants any material relating to the disputed issues and to discuss the issues with the Independent Accountants; (B) Buyer and Seller shall instruct the Independent Accountants to review only those items and amounts specifically set forth and objected to in the Notice of Disagreement, to make their determination based solely on such materials presented by Buyer and Seller (i.e., not on the basis of an independent review) and to resolve the dispute with respect to each such specified item and amount in accordance with the Accounting Standards, applied in a manner consistent with the preparation of the Interim Balance Sheet, and in accordance with the definition of Closing Working Capital set forth in this Agreement; (C) the determination of the Closing Balance Sheet and the Closing Working Capital by the Independent Accountants, as set forth in a notice to be delivered to both Buyer and Seller within sixty (60) days of the submission to the Independent Accountants of the issues remaining in dispute (or as soon thereafter as practicable), shall be final, binding and conclusive on the parties; and (D) the fees and costs of the Independent Accountants shall be borne (x) by Buyer if the Independent Accountants select the Closing Balance Sheet and/or Seller’s calculation of Closing Working Capital reflected on the Closing Statement, or (y) by Seller, if the Independent Accountants select Buyer’s Closing Balance Sheet or calculation of the Closing Working Capital reflected on the Notice of Disagreement. The Closing Balance Sheet and the Closing Date Statement, either as agreed to by Buyer and Seller or as determined by the Independent Accountants pursuant to this paragraph, shall be final and binding and shall be referred to respectively as the “Final Closing Balance Sheet” and the “Final Closing Date Statement.” (iv) No objection may be raised and no adjustment may be proposed to any entry or item contained in the Closing Balance Sheet or the Closing Date Statement except on the grounds that such item or entry is not in accordance with the provisions of this Agreement or the Accounting Standards, applied in a manner consistent with the preparation of the Interim Balance Sheet, or that such item or entry contains a mathematical error.

Preparation of Closing Date Statement. (i) Within 45 days after the Closing Date, Seller shall deliver to Buyer a consolidated balance sheet of the Business as of the Closing Date (the “Closing Balance Sheet”), together with a written A statement (the “Closing Date Statement”) setting forth in reasonable detail (A) Seller’s determination ” of the Closing Working Capital shall be prepared by the Buyer in the following manner: (1) Within sixty (60) days after the Closing Date, the Buyer shall deliver to the Seller the Closing Date Statement, fairly presenting the Closing Working Capital. The Closing Date Statement shall be accompanied by a report setting forth (i) Closing Working Capital as reflected in the Closing Date Statement, and (Bii) the amount of any adjustment to the Purchase Price to be paid and by whom pursuant to §§ 2.6(c) and the basis therefor. The Parties agree that, for purposes of calculating the Closing Balance Sheet Date Statement, the amount of the Inventory shall be prepared in accordance with the Accounting Standards, applied in determined based on a manner consistent with the preparation physical inventory as mutually agreed to and conducted by Buyer and Sellers as of the Interim Balance Sheet, without giving effect a date reasonably proximate to the changes to the balance sheet Closing Date, as a result of the transactions contemplated herebydetermined by Buyer and Sellers. (ii2) Following the Closing, Closing each of the Buyer and Seller the Sellers shall give the other parties and any independent auditors and authorized representatives of such other party reasonable full access at all reasonable times to the properties, books, records and personnel of the Business for purposes of to the extent related to preparing, reviewing and resolving any disputes concerning the Closing Date Statement. Buyer The Sellers shall have 30 thirty (30) days following the delivery to Buyer the Sellers of the Closing Date Statement during which to provide written notice to Seller notify the Buyer in writing of any dispute of any item contained in the Closing Balance Sheet or Closing Date Statement (a “Notice of Disagreement”)Statement, which notice shall set forth in reasonable detail any item on the Closing Balance Sheet and/or the Closing Date Statement that Buyer believes (a) has not been prepared in accordance with the Accounting Standards, applied in a manner consistent with the preparation of the Interim Balance Sheet, or in accordance with the definition of Closing Working Capital set forth herein, or (b) contains a mathematical errorbasis for such dispute. If the Sellers fail to notify the Buyer fails to provide a Notice of Disagreement to Seller any such dispute within such 30-30 day period, the Closing Balance Sheet and the Closing Date Statement shall be conclusive and binding on deemed to be accepted by the PartiesSellers. In the event that the Sellers shall so notify the Buyer shall provide a Notice of Disagreement to Seller within such 30-day periodany dispute, the Buyer and Seller the Sellers shall cooperate in good faith to resolve the such dispute as promptly as possible. (iii3) If the Sellers timely give the Buyer timely provides notice of a Notice of Disagreement to Sellerdispute, and if the Sellers and the Buyer and Seller fail to resolve the dispute issues outstanding with respect to the Closing Balance Sheet, the Closing Date Statement and the calculation of the Closing Working Capital within thirty 30 (30) days of Sellerthe Buyer’s receipt of the Notice of DisagreementSellers’ objection notice, the Sellers and the Buyer and Seller shall submit the issues remaining in dispute to Ernst & Young LLP a mutually agreeable nationally recognized accounting firm (the “Independent Accountants”) for resolution applying the Accounting Standards; providedprinciples, howeverpolicies and practices referred to in § 2.6(a)(1). Each party agrees to execute, that if requested by the Independent Accountants, a reasonable engagement letter. The Independent Accountants shall act as an arbitrator to determine, based solely on presentations by the Sellers and the Buyer, and not by independent review, only those issues still in dispute, and shall be limited to selecting either those adjustments, if any, that need be made for the Closing Working Capital amount reflected on Seller’s Closing Date Statement or to comply with the Closing Working Capital amount reflected on the Notice standards referred to in subsection (1) of Disagreement submitted by Buyerthis § 2.6(b). If issues are submitted to the Independent Accountants for resolution, (Ai) the Sellers and the Buyer and Seller shall furnish or cause to be furnished to the Independent Accountants such work papers and other documents and information relating to the disputed issues as the Independent Accountants may request and are available to that party or its agents and shall be afforded the opportunity to present to the Independent Accountants (in accordance with procedures established by the Independent Accountants) any material relating to the disputed issues and to discuss the issues with the Independent Accountants; (Bii) Buyer and Seller shall instruct the determination by the Independent Accountants to review only those items and amounts specifically set forth and objected to in the Notice of Disagreement, to make their determination based solely on such materials presented by Buyer and Seller (i.e., not on the basis of an independent review) and to resolve the dispute with respect to each such specified item and amount in accordance with the Accounting Standards, applied in a manner consistent with the preparation of the Interim Balance Sheet, and in accordance with the definition of Closing Working Capital set forth in this Agreement; (C) the determination of the Closing Balance Sheet and the Closing Working Capital by the Independent Accountants, as set forth in a notice to be delivered to both Buyer and Seller within sixty (60) days of the submission to the Independent Accountants of the issues remaining in dispute (or as soon thereafter as practicable), shall be final, binding and conclusive on the parties; parties and (D) the fees and costs of the Independent Accountants shall be borne (x) by Buyer if used in the Independent Accountants select the Closing Balance Sheet and/or Seller’s calculation of Closing Working Capital reflected on the Closing Statement, or (y) by Seller, if the Independent Accountants select Buyer’s Closing Balance Sheet or calculation of the Closing Working Capital reflected on Capital; and (iii) the Notice fees and expenses of Disagreement. The Closing Balance Sheet and the Independent Accountants will be paid by the party whose position in the aggregate is the farthest from the determination of the Closing Date Statement, either as agreed to by Buyer and Seller or as determined Working Capital by the Independent Accountants pursuant to this paragraph, shall be final and binding and shall be referred to respectively as the “Final Closing Balance Sheet” and the “Final Closing Date StatementAccountants.” (iv) No objection may be raised and no adjustment may be proposed to any entry or item contained in the Closing Balance Sheet or the Closing Date Statement except on the grounds that such item or entry is not in accordance with the provisions of this Agreement or the Accounting Standards, applied in a manner consistent with the preparation of the Interim Balance Sheet, or that such item or entry contains a mathematical error.

Preparation of Closing Date Statement. An unaudited statement (the “Closing Date Statement”) of (i) Working Capital (as defined in Section 1.8(e)) attributable to the Business exclusive of Akrosil Europe (“Asset Working Capital”) and (ii) Working Capital attributable to Akrosil Europe (“Akrosil Europe Working Capital”), in each case as of the close of business on the Closing Date shall be prepared by Seller in the following manner: (a) Within 45 sixty (60) days after the Closing Date, Seller shall deliver to Buyer a consolidated balance sheet of the Business Closing Date Statement, fairly presenting Asset Working Capital and Akrosil Europe Working Capital, in each case as of the close of business on the Closing Date in accordance with the basis of presentation and the accounting principles identified on Schedule 1.8 of the Disclosure Schedules. The Closing Date Statement shall set forth (i) Asset Working Capital and Akrosil Europe Working Capital as reflected in the “Closing Balance Sheet”), together with a written statement (the “Closing Date Statement”) setting forth in reasonable detail (A) Seller’s determination of the Closing Working Capital , and (Bii) the amount of any adjustment to each of the Estimated Asset Purchase Price and the Estimated Akrosil Europe Purchase Price to be paid and by whom pursuant to §2.6(c) Section 1.9 and the basis therefor. The Closing Balance Sheet shall be prepared in accordance with the Accounting Standards, applied in a manner consistent with the preparation of the Interim Balance Sheet, without giving effect to the changes to the balance sheet as a result of the transactions contemplated hereby. (iib) Following the Closing, each of Buyer and Seller shall give the other party reasonable and any independent auditors and authorized representatives of such other party full access at all reasonable times to the properties, books, records (other than books and records that are inseparable from Seller’s other operations) and personnel of the Business for purposes of preparing, reviewing and resolving any disputes concerning the Closing Date Statement. Buyer shall have 30 forty-five (45) days following the delivery to Buyer of the Closing Date Statement during which to provide written notice to notify Seller in writing of any dispute of any item contained in the Closing Balance Sheet or Closing Date Statement (a “Notice of Disagreement”)Statement, which notice shall set forth in reasonable detail any item on the Closing Balance Sheet and/or the Closing Date Statement that Buyer believes (a) has not been prepared in accordance with the Accounting Standards, applied in a manner consistent with the preparation of the Interim Balance Sheet, or in accordance with the definition of Closing Working Capital set forth herein, or (b) contains a mathematical errorbasis for such dispute. If Buyer fails to provide a Notice notify Seller of Disagreement to Seller any such dispute within such 3045-day period, the Closing Balance Sheet and the Closing Date Statement shall be conclusive and binding on the Partiesdeemed to be accepted by Buyer. In the event that Buyer shall provide a Notice so notify Seller of Disagreement to Seller within such 30-day periodany dispute, Buyer and Seller shall cooperate in good faith to resolve the such dispute as promptly as possible. (iiic) If Seller and Buyer timely provides a Notice acknowledge and agree that the purpose of Disagreement the procedures and adjustments contemplated by Sections 1.7, 1.8 and 1.9, is to Sellerplace on Seller the benefit or burden of differences between (i) the Asset Working Capital as set forth on the Final Statement and the Target Asset Working Capital, and if (ii) the Akrosil Europe Working Capital as set forth on the Final Statement and $5,361,000 (the “Target Akrosil Europe Working Capital”). Buyer and Seller fail agrees that it shall not propose adjustments to resolve the or dispute with respect to the Closing Balance Sheet, portions of the Closing Date Statement and prepared by Seller if such adjustments or disputes involve changes in or question the calculation methodology or the practices of the Closing Working Capital within thirty 30 days of Seller’s receipt of the Notice of Disagreement, Buyer and Seller shall submit the issues remaining in dispute to Ernst & Young LLP (the “Independent Accountants”) for resolution applying the Accounting Standards; provided, however, that the Independent Accountants shall be limited to selecting either the Closing Working Capital amount reflected on Seller’s Closing Statement or the Closing Working Capital amount reflected on the Notice of Disagreement submitted by Buyer. If issues are submitted to the Independent Accountants for resolution, (A) Buyer and Seller shall furnish or cause to be furnished to the Independent Accountants such work papers and other documents and information relating to the disputed issues as the Independent Accountants may request and are available to that party or its agents and shall be afforded the opportunity to present to the Independent Accountants any material relating to the disputed issues and to discuss the issues with the Independent Accountants; (B) Buyer and Seller shall instruct the Independent Accountants to review only those items and amounts specifically set forth and objected to in the Notice of Disagreement, to make their determination based solely on such materials presented by Buyer and Seller (i.e., not on the basis of an independent review) and to resolve the dispute with respect to each such specified item and amount which have been consistently applied in accordance with GAAP, subject to the Accounting Standards, applied in a manner consistent with the preparation of the Interim Balance Sheet, and in accordance with the definition of Closing Working Capital accounting principles set forth in this Agreement; (C) the determination Schedule 1.8 of the Closing Balance Sheet and Disclosure Schedules, in determining the Closing Working Capital by the Independent Accountants, as set forth in a notice to be delivered to both Buyer and Seller within sixty (60) days carrying value of the submission to assets and liabilities (including valuation accounts, pools and reserves and recognition of contingent liabilities, warranty reserves and reserves for doubtful accounts and inventory). For the Independent Accountants avoidance of the issues remaining in dispute (or as soon thereafter as practicable)doubt, shall be final, binding and conclusive on the parties; and (D) the fees and costs of the Independent Accountants shall be borne (x) by Buyer if the Independent Accountants select the Closing Balance Sheet and/or Seller’s calculation of Closing Working Capital reflected on the Closing Statement, or (y) by Seller, if the Independent Accountants select Buyer’s Closing Balance Sheet or calculation of the Closing Working Capital reflected on the Notice of Disagreement. The Closing Balance Sheet and the Closing Date Statement, either as it is expressly agreed to by Buyer and Seller or as determined by the Independent Accountants pursuant to this paragraph, shall be final and binding and shall be referred to respectively as the “Final Closing Balance Sheet” and the “Final Closing Date Statement.” (iv) No that no objection may be raised and no adjustment may be proposed to any entry or item contained in the Closing Balance Sheet or the Closing Date Statement except on the grounds that such item or entry is not in accordance with the provisions of this Agreement or the accounting principles set forth in Schedule 1.8 of the Disclosure Schedules consistently applied. (d) If Buyer and Seller are unable to resolve any such dispute within fifteen (15) days of Buyer’s delivery of such notice (the “Resolution Period”), then all amounts remaining in dispute shall be submitted to KPMG (the “Independent Accounting StandardsFirm”). Each party agrees to execute, applied if requested by the Independent Accounting Firm, a reasonable engagement letter. All fees and expenses relating to the work, if any, to be performed by the Independent Accounting Firm shall be borne equally by Seller and Buyer. The Independent Accounting Firm shall act as an arbitrator to determine, based solely on presentations by Seller and Buyer, and not by independent review, only those issues still in dispute and shall be limited to those adjustments, if any, that need be made for the Closing Date Statement to comply with the standards referred to in subsection (a) of this Section 1.8. The Independent Accounting Firm’s determination shall be requested to be made within thirty (30) days of such presentations, shall be set forth in a manner consistent written statement delivered to Seller and Buyer and shall be final, binding and conclusive. The “Final Statement” shall be (i) the Closing Date Statement in the event that the Buyer does not deliver a notice of dispute in the 45-day period specified in Section 1.8(b) or accepts the Closing Date Statement or (ii) the Closing Date Statement, as modified by resolution of any disputes by Buyer and Seller or by the Independent Accounting Firm. The procedures set forth in this Section 1.8 are the sole remedy for any disputes with respect to matters set forth on the preparation of the Interim Balance Sheet, or that such item or entry contains a mathematical errorClosing Date Statement.

Preparation of Closing Date Statement. An unaudited statement (ithe “Closing Date Statement”) of the value of the Closing Inventory, the value of the Excess Inventory and the Vacation and Holiday Pay Amount as of the opening of business on the Closing Date shall be prepared by Seller in the following manner: (a) Within 45 sixty (60) days after the Closing Date, Seller shall deliver to Buyer a consolidated balance sheet the Closing Date Statement, setting forth the value of the Business Closing Inventory, the value of the Excess Inventory and the Vacation and Holiday Pay Amount as of the opening of business on the Closing Date, calculated in accordance with the procedures and accounting principles identified in Schedule 1.8(a) of the Disclosure Schedules. The Closing Date (the “Closing Balance Sheet”), together with Statement shall be accompanied by a written statement (the “Closing Date Statement”) report setting forth in reasonable detail (A) Seller’s determination of the Closing Working Capital and (B) the amount of any adjustment to the Estimated Closing Purchase Price to be paid and by whom pursuant to §2.6(c) Section 1.9 and the basis therefor. The Closing Balance Sheet shall be prepared in accordance with , and (B) the Accounting Standards, applied in a manner consistent with the preparation amount of the Interim Balance Sheet, without giving effect to the changes to the balance sheet as a result of the transactions contemplated herebyDeferred Purchase Price. (iib) Following the Closing, each of Buyer and Seller shall give the other party reasonable and any independent auditors and authorized representatives of such other party full access at all reasonable times to the properties, books, records and personnel of the Business for purposes of preparing, reviewing and resolving any disputes concerning the Closing Date Statement. Buyer shall have 30 thirty (30) days following the delivery to Buyer of the Closing Date Statement during which to provide written notice to notify Seller in writing of any dispute of any item contained in the Closing Balance Sheet or Closing Date Statement (a “Notice of Disagreement”)Statement, which notice shall set forth in reasonable detail any item on the Closing Balance Sheet and/or the Closing Date Statement that Buyer believes (a) has not been prepared in accordance with the Accounting Standards, applied in a manner consistent with the preparation of the Interim Balance Sheet, or in accordance with the definition of Closing Working Capital set forth herein, or (b) contains a mathematical errorbasis for such dispute. If Buyer fails to provide a Notice notify Seller of Disagreement to Seller any such dispute within such 30-day period, the Closing Balance Sheet and the Closing Date Statement shall be conclusive and binding on the Partiesdeemed to be accepted by Buyer. In the event that Buyer shall provide a Notice so notify Seller of Disagreement to Seller within such 30-day periodany dispute, Buyer and Seller shall cooperate in good faith to resolve the such dispute as promptly as possible. (iiic) If Buyer timely provides a Notice agrees that it shall not propose adjustments to or dispute portions of Disagreement to Seller, and if Buyer and Seller fail to resolve the dispute with respect to the Closing Balance Sheet, the Closing Date Statement and prepared by Seller if such adjustments or disputes involve changes in or question the calculation methodology or the practices of the Closing Working Capital within thirty 30 days of Seller’s receipt Seller identified in Schedule 1.8(a) of the Notice Disclosure Schedules. For the avoidance of Disagreementdoubt, Buyer and Seller shall submit the issues remaining in dispute to Ernst & Young LLP (the “Independent Accountants”) for resolution applying the Accounting Standards; provided, however, it is expressly agreed that the Independent Accountants shall be limited to selecting either the Closing Working Capital amount reflected on Seller’s Closing Statement or the Closing Working Capital amount reflected on the Notice of Disagreement submitted by Buyer. If issues are submitted to the Independent Accountants for resolution, (A) Buyer and Seller shall furnish or cause to be furnished to the Independent Accountants such work papers and other documents and information relating to the disputed issues as the Independent Accountants may request and are available to that party or its agents and shall be afforded the opportunity to present to the Independent Accountants any material relating to the disputed issues and to discuss the issues with the Independent Accountants; (B) Buyer and Seller shall instruct the Independent Accountants to review only those items and amounts specifically set forth and objected to in the Notice of Disagreement, to make their determination based solely on such materials presented by Buyer and Seller (i.e., not on the basis of an independent review) and to resolve the dispute with respect to each such specified item and amount in accordance with the Accounting Standards, applied in a manner consistent with the preparation of the Interim Balance Sheet, and in accordance with the definition of Closing Working Capital set forth in this Agreement; (C) the determination of the Closing Balance Sheet and the Closing Working Capital by the Independent Accountants, as set forth in a notice to be delivered to both Buyer and Seller within sixty (60) days of the submission to the Independent Accountants of the issues remaining in dispute (or as soon thereafter as practicable), shall be final, binding and conclusive on the parties; and (D) the fees and costs of the Independent Accountants shall be borne (x) by Buyer if the Independent Accountants select the Closing Balance Sheet and/or Seller’s calculation of Closing Working Capital reflected on the Closing Statement, or (y) by Seller, if the Independent Accountants select Buyer’s Closing Balance Sheet or calculation of the Closing Working Capital reflected on the Notice of Disagreement. The Closing Balance Sheet and the Closing Date Statement, either as agreed to by Buyer and Seller or as determined by the Independent Accountants pursuant to this paragraph, shall be final and binding and shall be referred to respectively as the “Final Closing Balance Sheet” and the “Final Closing Date Statement.” (iv) No no objection may be raised and no adjustment may be proposed to any entry or item contained in the Closing Balance Sheet or the Closing Date Statement except on the grounds that such item or entry is not in accordance with the provisions of this Agreement or the procedures or accounting principles identified in Schedule 1.8(a) of the Disclosure Schedules consistently applied. (d) If Buyer and Seller are unable to resolve any such dispute within thirty (30) days of Buyer’s delivery of the notice referred to in Section 1.8(b) above (the “Resolution Period”), then all amounts remaining in dispute shall be submitted to the New York, New York office of PricewaterhouseCoopers LLP (the “Independent Accounting StandardsFirm”). Each party agrees to execute, applied if requested by the Independent Accounting Firm, a reasonable engagement letter. All fees and expenses relating to the work, if any, to be performed by the Independent Accounting Firm shall be borne equally by Seller and Buyer. The Independent Accounting Firm shall act as an arbitrator to determine, based solely on presentations by Seller and Buyer, and not by independent review, only those issues still in dispute and shall be limited to those adjustments, if any, that need be made for the Closing Date Statement to comply with the standards referred to in Section 1.8(a). The Independent Accounting Firm’s determination shall be requested to be made within thirty (30) days of its engagement, shall be set forth in a manner consistent written statement delivered to Seller and Buyer and shall be final, binding and conclusive. The “Final Statement” shall be (i) the Closing Date Statement in the event that the Buyer does not deliver a notice of dispute in the 30-day period specified in Section 1.8(b) or accepts the Closing Date Statement or (ii) the Closing Date Statement, as modified by written resolution of any disputes by Buyer and Seller or by the Independent Accounting Firm. The procedures set forth in this Section 1.8(d) are the sole remedy for any disputes with respect to matters set forth on or arising in connection with the preparation of the Interim Balance Sheet, or that such item or entry contains a mathematical errorClosing Date Statement.

Preparation of Closing Date Statement. (i) Within 45 days after the Closing Date, Seller shall deliver to Buyer a consolidated balance sheet of the Business as of the Closing Date (the “Closing Balance Sheet”), together with a written An unaudited statement (the “Closing Date Statement”) setting of Working Capital as of 11:59 p.m. on the Closing Date shall be prepared by Sellers in the following manner: (a) Sellers and Parent shall jointly take a physical count of Inventory of the Business (other than stores and supplies) included in the definition of Purchased Assets in accordance with the procedures set forth in reasonable detail Schedule 3.3 (Athe “Inventory Count”), the cost of which shall be borne 50% by the Sellers and 50% by Purchaser. The Inventory set forth on the Final Closing Date Statement shall take into account the results of the Inventory Count and shall consist of Inventory, net of reserves on the Final Closing Date Statement calculated in accordance with GAAP, applied consistently with the Specified Accounting Policies. The Inventory Count shall be completed no more than five (5) Seller’s determination calendar days before or after the Closing Date on such day or days as Parent and Sellers shall determine. Within ninety (90) days after the Closing Date, Sellers shall deliver to Parent the Closing Date Statement, fairly presenting the Working Capital as of 11:59 p.m. on the Closing Date, calculated in accordance with GAAP (except as provided in proviso (B) of Section 3.3(d) hereof), applied consistently with the Specified Accounting Policies. The Closing Date Statement shall be accompanied by a report setting forth: (i) the Working Capital as reflected in the Closing Date Statement, (ii) the amount of cash held by or on behalf of Cxxxx XX as of the Closing Working Capital Date (after giving effect to the Cogen Buyout) (the “Cogen Cash”), and (Biii) the amount of any adjustment to the Purchase Price to be paid and by whom pursuant to §2.6(c) Section 3.4 and the basis therefor. The Closing Balance Sheet shall be prepared in accordance with the Accounting Standards, applied in a manner consistent with the preparation of the Interim Balance Sheet, without giving effect to the changes to the balance sheet as a result of the transactions contemplated hereby. (iib) Following the Closing, each of Buyer Parent and Seller Sellers shall give the other party Party and any independent auditors and authorized representatives of such other Party reasonable access at all reasonable times during normal business hours to the properties, books, records and personnel of the Business with respect to periods on or prior to the Closing Date for purposes of preparing, reviewing and resolving any disputes concerning the Closing Date Statement. Buyer If Parent disputes the Closing Date Statement, Parent shall have 30 give Sellers notice of the dispute within thirty (30) days following the delivery to Buyer of after the Closing Date Statement during which has been delivered to provide written Parent, with such notice to Seller of any dispute of any item contained in the Closing Balance Sheet or Closing Date Statement (a “Notice of Disagreement”), which notice shall set setting forth in reasonable detail any item on the Closing Balance Sheet and/or the Closing Date Statement that Buyer believes (a) has not been prepared in accordance with the Accounting Standards, applied in a manner consistent with the preparation of the Interim Balance Sheet, or in accordance with the definition of Closing Working Capital set forth herein, or (b) contains a mathematical errorbasis for such dispute. If Buyer Parent fails to provide a Notice notify Sellers of Disagreement to Seller any such dispute within such 30-day period, the Closing Balance Sheet and the Closing Date Statement shall be conclusive and binding on the Partiesdeemed to be accepted. In the event that Buyer Parent shall provide a Notice so notify Sellers of Disagreement to Seller within any such 30-day perioddispute, Buyer Parent and Seller Sellers shall cooperate in good faith to resolve the such dispute as promptly as possiblewithin thirty (30) days. (iiic) If Buyer timely provides a Notice of Disagreement to Seller, Parent and if Buyer and Seller fail Sellers are unable to resolve the any such dispute with respect to the Closing Balance Sheet, the Closing Date Statement and the calculation of the Closing Working Capital within thirty 30 (30) days after Parent’s delivery of Seller’s receipt of such notice (the Notice of Disagreement“Resolution Period”), Buyer and Seller shall submit the issues then all amounts remaining in dispute shall be submitted promptly thereafter to Ernst & Young Gxxxx Xxxxxxxx LLP (the “Independent AccountantsAccounting Firm”) for resolution applying ). Each Party shall execute, if requested by the Independent Accounting StandardsFirm, a reasonable engagement letter. All fees and expenses relating to the work, if any, to be performed by the Independent Accounting Firm shall be paid equally by Parent and Sellers; provided, however, that if either Party prevails with respect to 75% or more of the total aggregate dollar amounts in dispute, the other Party shall bear the entire amount of the fees, expenses and costs of the Independent Accountants Accounting Firm. The Independent Accounting Firm shall act as an arbitrator to determine, based solely on presentations made by Sellers, on the one hand, and by Parent or Purchaser, on the other hand, to the representatives of the Independent Accounting Firm, and not by independent review, only those items or issues still in dispute and shall be limited to selecting either those adjustments, if any, which are required to be made so that the Closing Working Capital amount reflected on Seller’s Closing Date Statement or the Closing Working Capital amount reflected on the Notice of Disagreement submitted by Buyer. If issues are submitted to the Independent Accountants for resolution, (A) Buyer and Seller shall furnish or cause to be furnished to the Independent Accountants such work papers and other documents and information relating to the disputed issues as the Independent Accountants may request and are available to that party or its agents and shall be afforded the opportunity to present to the Independent Accountants any material relating to the disputed issues and to discuss the issues complies with the Independent Accountants; (B) Buyer and Seller shall instruct the Independent Accountants to review only those items and amounts specifically set forth and objected to in the Notice of Disagreement, to make their determination based solely on such materials presented by Buyer and Seller (i.e., not on the basis of an independent review) and to resolve the dispute with respect to each such specified item and amount in accordance with the Accounting Standards, applied in a manner consistent with the preparation of the Interim Balance Sheet, and in accordance with the definition of Closing Working Capital standards set forth in this Agreement; Section 3.3. The Independent Accounting Firm’s determination shall be requested to be made within thirty (C30) the determination of the Closing Balance Sheet and the Closing Working Capital by the Independent Accountantsdays after its engagement, as shall be set forth in a notice to be delivered to both Buyer writing, and Seller within sixty (60) days of the submission to the Independent Accountants of the issues remaining in dispute (or as soon thereafter as practicable), shall be final, binding and conclusive on the parties; and (D) the fees and costs of the Independent Accountants shall be borne (x) by Buyer if the Independent Accountants select the Closing Balance Sheet and/or Seller’s calculation of Closing Working Capital reflected on the Closing Statement, or (y) by Seller, if the Independent Accountants select Buyer’s Closing Balance Sheet or calculation of the Closing Working Capital reflected on the Notice of Disagreementconclusive. The Closing Balance Sheet and the Closing Date Statement, either as agreed to by Buyer and Seller or as determined modified by resolution of any disputes by Parent and Sellers or by the Independent Accountants pursuant to this paragraphAccounting Firm, shall be final and binding and shall be referred to respectively as the “Final Closing Balance Sheet” and the “Final Closing Date Statement.” (d) The term “Working Capital” shall mean the current assets of the Business and Cxxxx XX (excluding (i) any “stores and supplies” Inventory consisting of, among other things, spare parts for property, plant and equipment and related items, (ii) the Supplier Rebates, (iii) the Cogen Cash, (iv) No objection may be raised the current portion of the Cogen Junior Notes and no adjustment may be proposed to any entry or item contained the Cogen Senior Notes and (v) South Carolina Injury Fund Claims) that are included in the Closing Balance Sheet or definition of Purchased Assets, minus the Closing Date Statement except current liabilities of the Business and Cxxxx XX (including the Accrued Fire Expenses contemplated by Section 3.2(b) hereof and the Assumed Health and Welfare Claims contemplated by Section 7.5(e) hereof but excluding the Customer Rebates and the FIN47 Obligations) that are included in the definition of Assumed Liabilities, in each case determined on a consolidated basis (with respect to the grounds that such item or entry is not Business and Cxxxx XX) in accordance with the provisions of this Agreement or the Accounting StandardsGAAP, applied in a manner consistent consistently with the preparation Specified Accounting Policies and, except for the incentive compensation accrual and the Fire Loss Adjustment, the calculation of the Interim Balance SheetTarget Working Capital set forth on Schedule 3.2(a); provided, however, that (A) neither Excluded Assets nor Excluded Liabilities shall be included in the calculation of Working Capital, and (B) all accrued liabilities for worker’s compensation and incurred but not reported medical claims shall be excluded as current liabilities for the purposes of calculating Working Capital, whether or that not such item or entry contains a mathematical errorliabilities would otherwise have been classified as current liabilities in accordance with GAAP.