Common use of Accounting Procedures Clause in Contracts

Accounting Procedures. (a) As soon as practicable after the Time of Closing, but in any event not later than December 31, 1998, Xxxx Xxxxxx shall cause its chief financial officer (the "Xxxx Xxxxxx CFO") to prepare the Closing Date Balance Sheet and a related unaudited statement of income of the Companies for the twelve (12) months ended October 31, 1998 setting forth for the period under examination (i) the Closing Date Net Worth, if not sooner agreed upon in writing by Purchaser, Xxxx Xxxxxx, ITC and Huntington (the "Special Determination"). If Xxxxxxx Xxxxxxx and Xxxxx Vacheron Alexander, acting jointly (the "Remaining Members"), do not agree that the Special Determination correctly states the Closing Date Net Worth, the Remaining Members shall promptly (but not later than 30 days after the delivery of the Special Determination) give written notice to Xxxx Xxxxxx of any exceptions thereto (in reasonable detail describing the nature of the disagreement asserted). If the Remaining Members and Xxxx Xxxxxx reconcile their differences, the Closing Date Net Worth shall be adjusted accordingly and shall thereupon become binding, final and conclusive upon all of the parties hereto and enforceable in a court of law. If the Remaining Members and Xxxx Xxxxxx are unable to reconcile their differences in writing within 20 days after written notice of exceptions is delivered to the Purchaser, the items in dispute shall be submitted to a mutually acceptable accounting firm selected from among the six largest accounting firms in the United States in terms of gross revenues (the "Independent Auditors") for final determination, and the Closing Date Net Worth shall be deemed adjusted in accordance with the determination of the Independent Auditors and shall become final and conclusive upon all of the parties hereto and enforceable in a court of law. The Independent Auditors shall consider only the items in dispute and shall be instructed to act within 20 days (or such longer period as the Remaining Members and Xxxx Xxxxxx may agree) to resolve all items in dispute. If the Remaining Members do not give notice of any exception within 30 days after the delivery of the Special Determination or if the Remaining Members in their discretion give written notification of their acceptance of the Closing Date Net Worth prior to the end of such 30 day period, the Closing Date Balance Sheet set forth in the Special Determination (as the case may be) shall thereupon become binding, final and conclusive upon all the parties hereto and enforceable in a court of law. Notwithstanding the foregoing, the Special Determination shall not be made unless the Seller has engaged in business or activities outside of the ordinary course of business from October 31, 1998 through the time of Closing and the Xxxx Xxxxxx CFO notifies the Seller of that fact (to which the Seller may take exception pursuant to the same procedures set forth above) within the Special Determination.

Accounting Procedures. (ai) As Parent shall cause Xxxxxx Xxxxxxxx LLP, or another independent accounting firm chosen by Parent (the "Accountants") as soon as practicable after the Time of Closing, but to prepare in any event not later than December 31accordance with GAAP, 1998, Xxxx Xxxxxx shall cause its chief financial officer a report containing an audited balance sheet of the Company immediately prior to the Effective Time (the "Xxxx Xxxxxx CFOClosing Balance Sheet") to prepare the Closing Date Balance Sheet and ), together with a related unaudited statement of income of the Companies for the twelve (12) months ended October 31, 1998 Accountants based upon such report and stating that it was prepared in accordance with this Agreement and setting forth for the period under examination (i) Tangible Net Worth and all adjustments required to be made to such audited balance sheet in order to make the Closing Date Net Worth, if not sooner agreed upon in writing calculations required by Purchaser, Xxxx Xxxxxx, ITC and Huntington this Section 2.5 (the "Special Determination"). If Xxxxxxx Xxxxxxx and Xxxxx Vacheron Alexander, acting jointly (the "Remaining Members"), Stockholders do not agree that the Special Determination correctly states the Closing Date Tangible Net Worth, the Remaining Members Representative shall promptly (but not later than 30 45 days after the delivery to them of the Special Determination) give written notice to Xxxx Xxxxxx Parent of any exceptions thereto (in reasonable detail describing the nature of the disagreement asserted). If the Remaining Members Representative and Xxxx Xxxxxx Parent reconcile their differences, the Closing Date Tangible Net Worth calculation shall be adjusted accordingly and shall thereupon become binding, final and conclusive upon all of the parties hereto and enforceable in a court of law. If the Remaining Members Representative and Xxxx Xxxxxx Parent are unable to reconcile their differences in writing within 20 days after written notice of exceptions is delivered to Parent (the Purchaser"Reconciliation Period"), the items in dispute shall be submitted to a mutually acceptable accounting firm (other than the Accountants) selected from among any of the six five largest accounting firms in the United States in terms of gross revenues (the "Independent Auditors") for final determination, and the Closing Date Tangible Net Worth calculation shall be deemed adjusted in accordance with the determination of the Independent Auditors and shall become binding, final and conclusive upon all of the parties hereto and enforceable in a court of law. The Independent Auditors shall consider only the items in dispute and shall be instructed to act within 20 days (or such longer period as the Remaining Members Stockholders and Xxxx Xxxxxx Parent may agree) to resolve all items in dispute. If the Remaining Members do Representative does not give notice of any exception within 30 45 days after the delivery to them of the Special Determination or if the Remaining Members in their discretion give Representative gives written notification of their the Stockholders' acceptance of the Closing Date Tangible Net Worth prior to the end of such 30 45 day period, the Closing Date Balance Sheet Tangible Net Worth set forth in the Special Determination (as the case may be) shall thereupon become binding, final and conclusive upon all the parties hereto and enforceable in a court of law. Notwithstanding the foregoing, the Special Determination shall not be made unless the Seller has engaged in business or activities outside of the ordinary course of business from October 31, 1998 through the time of Closing and the Xxxx Xxxxxx CFO notifies the Seller of that fact (to which the Seller may take exception pursuant to the same procedures set forth above) within the Special Determination.

Accounting Procedures. (ai) As soon as practicable after the Time of ClosingClosing Date, but in any no event not later than December 31, 1998, Xxxx Xxxxxx shall cause its chief financial officer 60 days after the independent accounting firm then auditing the books of the Purchaser (the "Xxxx Xxxxxx CFO") “Accountants”), shall have received from the Company all information, books and records reasonably requested by them in order to prepare make the Closing Date Balance Sheet and a related unaudited statement of income Working Capital calculation described in Section 2.1.1(iii) above, the Purchaser shall cause the Accountants to prepare an audited balance sheet of the Companies for Company as of the twelve Closing Date, prepared in accordance with generally accepted accounting principles (12) months ended October 31“GAAP”), 1998 together with a statement setting forth for the period under examination (i) the Closing Date Net Worth, if not sooner agreed upon in writing by Purchaser, Xxxx Xxxxxx, ITC Working Capital as of the Closing Date and Huntington all adjustments to the balance sheet required to make the calculation of Closing Date Working Capital (the "“Special Determination"” and such balance sheet referred to as the “Closing Date Balance Sheet”). If Xxxxxxx Xxxxxxx and Xxxxx Vacheron Alexander, acting jointly (the "Remaining Members"), do Sellers’ Representative does not agree that the Special Determination correctly states the amount of Closing Date Net WorthWorking Capital, the Remaining Members Sellers’ Representative shall promptly (but not later than 30 45 days after the delivery of the Special Determination) give written notice to Xxxx Xxxxxx the Purchaser of any exceptions thereto (in reasonable detail describing the nature of the disagreement asserted). If the Remaining Members Sellers’ Representative and Xxxx Xxxxxx the Purchaser reconcile their differences, the Closing Date Net Worth Working Capital calculation shall be adjusted accordingly and shall thereupon become binding, final and conclusive upon all of the parties hereto and enforceable in a court of lawhereto. If the Remaining Members Sellers’ Representative and Xxxx Xxxxxx the Purchaser are unable to reconcile their differences in writing within 20 days after written notice of exceptions is delivered to the Purchaser, the items in dispute shall be submitted to a mutually acceptable accounting firm selected from among the six largest accounting firms in the United States in terms of gross revenues (the "“Independent Auditors"”) for final determination, and the Closing Date Net Worth Working Capital calculation shall be deemed adjusted in accordance with the determination of the Independent Auditors and shall become binding, final and conclusive upon all of the parties hereto and enforceable in a court of lawhereto. The Independent Auditors shall consider only the items in dispute and shall be instructed to act within 20 30 days (or such longer period as the Remaining Members Sellers’ Representative and Xxxx Xxxxxx the Purchaser may agree) to resolve all items in dispute. If the Remaining Members do Sellers’ Representative does not give notice of any exception within 30 45 days after the delivery of the Special Determination Closing Date Working Capital calculation or if the Remaining Members in their discretion give Sellers’ Representative gives written notification of their its acceptance of the Closing Date Net Worth Working Capital calculation prior to the end of such 30 45 day period, the Closing Date Balance Sheet Working Capital calculation set forth in the Special Determination (as the case may be) shall thereupon become binding, final and conclusive upon all of the parties hereto and enforceable in a court of law. Notwithstanding the foregoing, the Special Determination shall not be made unless the Seller has engaged in business or activities outside of the ordinary course of business from October 31, 1998 through the time of Closing and the Xxxx Xxxxxx CFO notifies the Seller of that fact (to which the Seller may take exception pursuant to the same procedures set forth above) within the Special Determinationhereto.

Accounting Procedures. The compensation to be paid pursuant to Sections 3.2 and 3.3 hereof shall be determined in accordance with the following procedure: (ae) As soon as practicable after the Time of Closing, but in any event not later than December 31, 1998, Xxxx Xxxxxx shall cause its chief financial officer The Company’s independent auditors (the "Xxxx Xxxxxx CFO"“Accountants”) shall prepare in accordance with GAAP, and deliver to prepare the Closing Date Balance Sheet Company, a report containing a computation of Adjusted EBITDA under Sections 3.2 and 3.3, respectively, within 90 days following the completion of each calendar year (“Report of Accountants”). The Company shall promptly deliver, or cause to be delivered, a related unaudited statement copy of income each such computation of each applicable Adjusted EBITDA to the Consultant or its representatives. 5 (f) Either party shall have thirty (30) days following receipt of the Companies for the twelve (12) months ended October 31Report of Accountants to dispute any computations made therein, 1998 setting forth for the period under examination (i) the Closing Date Net Worth, if not sooner agreed upon in writing by Purchaser, Xxxx Xxxxxx, ITC and Huntington (the "Special Determination"). If Xxxxxxx Xxxxxxx and Xxxxx Vacheron Alexander, acting jointly (the "Remaining Members"), do not agree that the Special Determination correctly states the Closing Date Net Worth, the Remaining Members shall promptly (but not later than 30 days after the delivery of the Special Determination) give a written notice to Xxxx Xxxxxx of any exceptions thereto (in reasonable detail describing the nature other party hereto, which notice shall include an explanation of the disagreement asserted)basis for such dispute. If after such thirty day period neither party receives written notice of a dispute, the Remaining Members Report of Accountants shall thereupon be deemed final and Xxxx Xxxxxx binding on the parties. (g) If the Company and the Consultant reconcile their differences, the Closing Date Net Worth applicable Adjusted EBITDA for the relevant time period shall be adjusted accordingly and shall thereupon become binding, final and conclusive upon all of agreement in writing by the parties hereto parties, and shall be enforceable in a court of law. If the Remaining Members Company and Xxxx Xxxxxx the Consultant are unable to reconcile their differences in writing within 20 days after written notice of exceptions is delivered to the Purchaserother party (the “Reconciliation Period”), the items in dispute shall be submitted to a mutually acceptable accounting firm selected from among (other than the six largest accounting firms in the United States in terms of gross revenues Accountants) (the "“Independent Auditors"”) for final determination, and the Closing Date Net Worth calculation of applicable Adjusted EBITDA for the relevant time period shall be deemed adjusted in accordance with the determination of the Independent Auditors and shall become binding, final and conclusive upon all of the parties hereto and enforceable in a court of law. The Independent Auditors shall consider only the items in dispute and shall be instructed to act within 20 days (or such longer period as the Remaining Members and Xxxx Xxxxxx parties hereto may agree) to resolve all items in dispute. If In the Remaining Members do not give notice event the parties are unable to agree on a mutually acceptable accounting firm within thirty (30) days of the expiration of the Reconciliation Period, the matter shall be submitted to the courts of the State of New York, County of Nassau, which the parties agree shall have the exclusive right to appoint the accounting firm on behalf of the parties. (h) Notwithstanding any exception provision in this Agreement to the contrary, nothing in this Agreement shall require the Company to restate its audited financial statements. The Company may at its sole discretion, with respect to any excess or deficiency in Consultant’s compensation resulting from a dispute resolved pursuant to this Section 3.5, credit the Consultant for any such deficiency or offset any of Consultant’s compensation hereunder for any such excess, and apply such credit or offset (as applicable) in the following calendar year, provided however that any credit shall be paid to Consultant within 30 days after the delivery of the Special Determination or if the Remaining Members in their discretion give written notification of their acceptance of the Closing Date Net Worth prior to the end of final determination under this Section that such 30 day period, the Closing Date Balance Sheet set forth in the Special Determination (as the case may be) shall thereupon become binding, final and conclusive upon all the parties hereto and enforceable in a court of lawcredit is owed. Notwithstanding the foregoing, the Special Determination shall not be made unless the Seller has engaged in business or activities outside of the ordinary course of business from October 31, 1998 through the time of Closing and the Xxxx Xxxxxx CFO notifies the Seller of that fact (to which the Seller may take exception pursuant to the same procedures set forth above) within the Special Determination4.

Accounting Procedures. (ai) As The Purchaser shall, or shall cause BDO Xxxxxxx LLP, or another independent accounting firm chosen by the Purchaser (the "Accountants"), as soon as practicable after the Time of Closing, but to prepare in any event not later than December 31accordance with GAAP and deliver to the Representative, 1998, Xxxx Xxxxxx shall cause its chief financial officer a report containing a consolidated balance sheet of the Company and the Subsidiaries as of the close of business on the Closing Date and taking into account the transactions effected by the Formation and the NT Conveyance Document (the "Xxxx Xxxxxx CFOClosing Balance Sheet") to prepare ), together with a statement of the Accountants based upon such report which sets forth the Closing Date Balance Sheet and a related unaudited statement of income of the Companies for the twelve (12) months ended October 31, 1998 setting forth for the period under examination (i) the Closing Date Net Worth, if not sooner agreed upon in writing by Purchaser, Xxxx Xxxxxx, ITC and Huntington Working Capital (the "Special Determination"). If Xxxxxxx Xxxxxxx the Purchaser engages the Accountants, the Purchaser shall have the option, in its sole discretion (and Xxxxx Vacheron Alexander, acting jointly (at its sole expense) to instruct the "Remaining Members"), do Accountants to audit or perform agreed upon procedures on the Closing Balance Sheet and to determine the scope of such audit or procedures. If the Representative does not agree that the Special Determination correctly states the Closing Date Net WorthWorking Capital, the Remaining Members Representative shall promptly (but not later than 30 days after the delivery to him of the Special Determination) give written notice to Xxxx Xxxxxx the Purchaser of any exceptions thereto (in reasonable detail describing the nature of the disagreement asserted). If the Remaining Members Representative and Xxxx Xxxxxx the Purchaser reconcile their differences, the Closing Date Net Worth Working Capital calculation shall be adjusted accordingly and shall thereupon become binding, final and conclusive upon all of the parties hereto and enforceable in a court of law. If the Remaining Members dispute relates to an accounting issue and Xxxx Xxxxxx if the Representative and the Purchaser are unable to reconcile their differences in writing within 20 days after written notice of exceptions is delivered to the PurchaserPurchaser (the "Reconciliation Period"), the accounting items in dispute shall be submitted to a mutually acceptable accounting firm (other than the Accountants) selected from among any of the six four largest accounting firms in the United States in terms of gross revenues (the "Independent Auditors") for final determination, and the . The Closing Date Net Worth Working Capital calculation shall be deemed adjusted in accordance with the determination of the Independent Auditors and shall become binding, final and conclusive upon all of the parties hereto and enforceable in a court of law. The Independent Auditors shall consider only the accounting items in dispute and shall be instructed to act within 20 days (or such longer period as the Remaining Members Representative and Xxxx Xxxxxx the Purchaser may agree) to resolve all accounting items in dispute. If the Remaining Members do dispute involves a non-accounting issue and such dispute cannot be reconciled within the Reconciliation Period, the dispute shall be settled by a court of competent jurisdiction. If the Representative does not give written notice of any exception within 30 days after the delivery to it of the Special Determination or if the Remaining Members in their discretion give Representative gives written notification of their his acceptance of the Closing Date Net Worth Working Capital prior to the end of such 30 day period, the Closing Date Balance Sheet Working Capital set forth in the Special Determination (as the case may be) shall thereupon become binding, final and conclusive upon all the parties hereto and enforceable in a court of law. Notwithstanding the foregoing, the Special Determination shall not be made unless the Seller has engaged in business or activities outside of the ordinary course of business from October 31, 1998 through the time of Closing and the Xxxx Xxxxxx CFO notifies the Seller of that fact (to which the Seller may take exception pursuant to the same procedures set forth above) within the Special Determination.

Accounting Procedures. The compensation to be paid pursuant to Sections 3.2 and 3.3 hereof shall be determined in accordance with the following procedure: (ae) As soon as practicable after the Time of Closing, but in any event not later than December 31, 1998, Xxxx Xxxxxx shall cause its chief financial officer The Company’s independent auditors (the "Xxxx Xxxxxx CFO"“Accountants”) shall prepare in accordance with GAAP, and deliver to prepare the Closing Date Balance Sheet Company, a report containing a computation of Adjusted EBITDA under Sections 3.2 and 3.3, respectively, within 90 days following the completion of each calendar year (“Report of Accountants”). The Company shall promptly deliver, or cause to be delivered, a related unaudited statement copy of income each such computation of each applicable Adjusted EBITDA to the Consultant or its representatives. (f) Either party shall have thirty (30) days following receipt of the Companies for the twelve (12) months ended October 31Report of Accountants to dispute any computations made therein, 1998 setting forth for the period under examination (i) the Closing Date Net Worth, if not sooner agreed upon in writing by Purchaser, Xxxx Xxxxxx, ITC and Huntington (the "Special Determination"). If Xxxxxxx Xxxxxxx and Xxxxx Vacheron Alexander, acting jointly (the "Remaining Members"), do not agree that the Special Determination correctly states the Closing Date Net Worth, the Remaining Members shall promptly (but not later than 30 days after the delivery of the Special Determination) give a written notice to Xxxx Xxxxxx of any exceptions thereto (in reasonable detail describing the nature other party hereto, which notice shall include an explanation of the disagreement asserted)basis for such dispute. If after such thirty day period neither party receives written notice of a dispute, the Remaining Members Report of Accountants shall thereupon be deemed final and Xxxx Xxxxxx binding on the parties. (g) If the Company and the Consultant reconcile their differences, the Closing Date Net Worth applicable Adjusted EBITDA for the relevant time period shall be adjusted accordingly and shall thereupon become binding, final and conclusive upon all of agreement in writing by the parties hereto parties, and shall be enforceable in a court of law. If the Remaining Members Company and Xxxx Xxxxxx the Consultant are unable to reconcile their differences in writing within 20 days after written notice of exceptions is delivered to the Purchaserother party (the “Reconciliation Period”), the items in dispute shall be submitted to a mutually acceptable accounting firm selected from among (other than the six largest accounting firms in the United States in terms of gross revenues Accountants) (the "“Independent Auditors"”) for final determination, and the Closing Date Net Worth calculation of applicable Adjusted EBITDA for the relevant time period shall be deemed adjusted in accordance with the determination of the Independent Auditors and shall become binding, final and conclusive upon all of the parties hereto and enforceable in a court of law. The Independent Auditors shall consider only the items in dispute and shall be instructed to act within 20 days (or such longer period as the Remaining Members and Xxxx Xxxxxx parties hereto may agree) to resolve all items in dispute. If In the Remaining Members do not give notice event the parties are unable to agree on a mutually acceptable accounting firm within thirty (30) days of the expiration of the Reconciliation Period, the matter shall be submitted to the courts of the State of New York, County of Nassau, which the parties agree shall have the exclusive right to appoint the accounting firm on behalf of the parties. 5 (h) Notwithstanding any exception provision in this Agreement to the contrary, nothing in this Agreement shall require the Company to restate its audited financial statements. The Company may at its sole discretion, with respect to any excess or deficiency in Consultant’s compensation resulting from a dispute resolved pursuant to this Section 3.5, credit the Consultant for any such deficiency or offset any of Consultant’s compensation hereunder for any such excess, and apply such credit or offset (as applicable) in the following calendar year, provided however that any credit shall be paid to Consultant within 30 days after the delivery of the Special Determination or if the Remaining Members in their discretion give written notification of their acceptance of the Closing Date Net Worth prior to the end of final determination under this Section that such 30 day period, the Closing Date Balance Sheet set forth in the Special Determination (as the case may be) shall thereupon become binding, final and conclusive upon all the parties hereto and enforceable in a court of lawcredit is owed. Notwithstanding the foregoing, the Special Determination shall not be made unless the Seller has engaged in business or activities outside of the ordinary course of business from October 31, 1998 through the time of Closing and the Xxxx Xxxxxx CFO notifies the Seller of that fact (to which the Seller may take exception pursuant to the same procedures set forth above) within the Special Determination4.

Accounting Procedures. (ai) As The Purchaser shall cause Xxxxxxxxx, Kass & Company, P.C., or another independent accounting firm chosen by the Purchaser (the "Accountants"), as soon as practicable after the Time of Closing, but to prepare in any event not later than December 31accordance with generally accepted accounting principles consistently applied ("GAAP"), 1998, Xxxx Xxxxxx shall cause its chief financial officer a report containing an audited balance sheet of the Company as of the close of business on the Effective Date (the "Xxxx Xxxxxx CFO") to prepare the Closing Effective Date Balance Sheet and Sheet"), together with a related unaudited statement of income the Accountants based upon such report and stating that it was prepared in accordance with this Agreement and setting forth the Net Worth (as defined in section 8.13) of the Companies for the twelve (12) months ended October 31, 1998 setting forth for the period under examination (i) the Closing Date Net Worth, if not sooner agreed upon in writing by Purchaser, Xxxx Xxxxxx, ITC and Huntington Stockholder (the "Special Determination"). If Xxxxxxx Xxxxxxx and Xxxxx Vacheron Alexander, acting jointly (the "Remaining Members"), do Stockholder does not agree that the Special Determination correctly states the Closing Date Net Worth, the Remaining Members Stockholder shall promptly (but not later than 30 45 days after the delivery to it of the Special Determination) give written notice to Xxxx Xxxxxx the Purchaser of any exceptions thereto (in reasonable detail describing the nature of the disagreement asserted). If the Remaining Members Stockholder and Xxxx Xxxxxx the Purchaser reconcile their differences, the Closing Date Net Worth calculation shall be adjusted accordingly and shall thereupon become binding, final and conclusive upon all of the parties hereto and enforceable in a court of law. If the Remaining Members Stockholder and Xxxx Xxxxxx the Purchaser are unable to reconcile their differences in writing within 20 days after written notice of exceptions is delivered to the PurchaserPurchaser (the "Reconciliation Period"), the items in dispute shall be submitted to a mutually acceptable accounting firm (other than the Accountants) selected from among any of the six five largest accounting firms in the United States in terms of gross revenues (the "Independent Auditors") for final determination, and the Closing Date Net Worth calculation shall be deemed adjusted in accordance with the determination of the Independent Auditors and shall become binding, final and conclusive upon all of the parties hereto and enforceable in a court of law. The Independent Auditors shall consider only the items in dispute and shall be instructed to act within 20 days (or such longer period as the Remaining Members Stockholder and Xxxx Xxxxxx the Purchaser may agree) to resolve all items in dispute. If the Remaining Members do Stockholder does not give notice of any exception within 30 45 days after the delivery to it of the Special Determination or if the Remaining Members in their discretion give Stockholder gives written notification of their its acceptance of the Closing Date Net Worth prior to the end of such 30 45 day period, the Closing Date Balance Sheet Net Worth set forth in the Special Determination (as the case may be) shall thereupon become binding, final and conclusive upon all the parties hereto and enforceable in a court of law. Notwithstanding the foregoing, the Special Determination shall not be made unless the Seller has engaged in business or activities outside of the ordinary course of business from October 31, 1998 through the time of Closing and the Xxxx Xxxxxx CFO notifies the Seller of that fact (to which the Seller may take exception pursuant to the same procedures set forth above) within the Special Determination.

Accounting Procedures. The compensation to be paid pursuant to Section 3.1 hereof shall be determined in accordance with the following procedure: 3 (a) As soon as practicable after the Time of Closing, but in any event not later than December 31, 1998, Xxxx Xxxxxx shall cause its chief financial officer The Company’s independent accountants (the "Xxxx Xxxxxx CFO"“Accountants”) shall prepare in accordance with GAAP, and deliver to prepare the Closing Date Balance Sheet and Company, a related unaudited statement report containing a computation of income Adjusted EBITDA, within 90 days following the completion of each calendar year (“Report of Accountants”). The Company shall promptly deliver, or cause to be delivered, a copy of each such computation of Adjusted EBITDA to the Consultant or its representatives. (b) Either party shall have thirty (30) days following receipt of the Companies for the twelve (12) months ended October 31Report of Accountants to dispute any computations made therein, 1998 setting forth for the period under examination (i) the Closing Date Net Worth, if not sooner agreed upon in writing by Purchaser, Xxxx Xxxxxx, ITC and Huntington (the "Special Determination"). If Xxxxxxx Xxxxxxx and Xxxxx Vacheron Alexander, acting jointly (the "Remaining Members"), do not agree that the Special Determination correctly states the Closing Date Net Worth, the Remaining Members shall promptly (but not later than 30 days after the delivery of the Special Determination) give a written notice to Xxxx Xxxxxx of any exceptions thereto (in reasonable detail describing the nature other party hereto, which notice shall include an explanation of the disagreement asserted)basis for such dispute. If after such thirty (30) day period neither party receives written notice of a dispute, the Remaining Members Report of Accountants shall thereupon be deemed final and Xxxx Xxxxxx binding on the parties. (c) If the Company and the Consultant reconcile their differences, the Closing Date Net Worth Adjusted EBITDA for the relevant time period shall be adjusted accordingly and shall thereupon become binding, final and conclusive upon all of agreement in writing by the parties hereto parties, and shall be enforceable in a court of law. If the Remaining Members Company and Xxxx Xxxxxx the Consultant are unable to reconcile their differences in writing within 20 days after written notice of exceptions is delivered to the Purchaserother party (the “Reconciliation Period”), the items in dispute shall be submitted to a mutually acceptable accounting firm selected from among (other than the six largest accounting firms in the United States in terms of gross revenues Accountants) (the "“Independent Auditors"”) for final determination, and the Closing Date Net Worth calculation of Adjusted EBITDA for the relevant time period shall be deemed adjusted in accordance with the determination of the Independent Auditors and shall become binding, final and conclusive upon all of the parties hereto and enforceable in a court of law. The Independent Auditors shall consider only the items in dispute and shall be instructed to act within 20 days (or such longer period as the Remaining Members and Xxxx Xxxxxx parties hereto may agree) to resolve all items in dispute. If In the Remaining Members do not give notice event the parties are unable to agree on a mutually acceptable accounting firm within thirty (30) days of the expiration of the Reconciliation Period, the matter shall be submitted to the courts of the State of New York, County of Nassau, which the parties agree shall have the exclusive right to appoint the accounting firm on behalf of the parties. (d) Notwithstanding any exception provision in this Agreement to the contrary, nothing in this Agreement shall require the Company to restate its audited financial statements. The Company may at its sole discretion, with respect to any excess or deficiency in Consultant’s compensation resulting from a dispute resolved pursuant to this Section 3.3, credit the Consultant for any such deficiency or offset any of Consultant’s compensation hereunder for any such excess, and apply such credit or offset (as applicable) in the following calendar year, provided however that any credit shall be paid to Consultant within 30 days after the delivery of the Special Determination or if the Remaining Members in their discretion give written notification of their acceptance of the Closing Date Net Worth prior to the end of final determination under this Section that such 30 day period, the Closing Date Balance Sheet set forth in the Special Determination (as the case may be) shall thereupon become binding, final and conclusive upon all the parties hereto and enforceable in a court of lawcredit is owed. Notwithstanding the foregoing, the Special Determination shall not be made unless the Seller has engaged in business or activities outside of the ordinary course of business from October 31, 1998 through the time of Closing and the Xxxx Xxxxxx CFO notifies the Seller of that fact (to which the Seller may take exception pursuant to the same procedures set forth above) within the Special Determination4.

Accounting Procedures. (ai) As The Purchaser shall, or shall cause BDO Xxxxxxx LLP, or another independent accounting firm chosen by the Purchaser (the "Accountants"), at the Purchaser's expense, as soon as practicable after the Time of Closing, but to prepare in any event not later than December 31accordance with GAAP and deliver to the Representative, 1998a report containing a consolidated balance sheet of the Company and its subsidiaries, Xxxx Xxxxxx shall cause its chief financial officer if any, as of the close of business as of the Effective Date immediately after the consummation of the transactions effected by the Conveyance Document (the "Xxxx Xxxxxx CFOClosing Balance Sheet") to prepare the Closing Date Balance Sheet and ), together with a related unaudited statement of income of the Companies for Accountants based upon such report which sets forth the twelve (12) months ended October 31, 1998 setting forth for the period under examination (i) the Closing Effective Date Net Worth, if not sooner agreed upon in writing by Purchaser, Xxxx Xxxxxx, ITC and Huntington Working Capital (the "Special Determination"). The Purchaser shall have the option, in its sole discretion (and at its sole expense) to instruct the Accountants to audit or perform agreed upon procedures on the Closing Balance Sheet and to determine the scope of such audit or procedures. If Xxxxxxx Xxxxxxx and Xxxxx Vacheron Alexander, acting jointly (the "Remaining Members"), do Representative does not agree that the Special Determination correctly states the Closing Effective Date Net WorthWorking Capital, the Remaining Members Representative shall promptly (but not later than 30 days after the delivery to him of the Special Determination) give written notice to Xxxx Xxxxxx the Purchaser of any exceptions thereto (in reasonable detail describing the nature of the disagreement asserted). If the Remaining Members Representative and Xxxx Xxxxxx the Purchaser reconcile their differences, the Closing Effective Date Net Worth Working Capital calculation shall be adjusted accordingly and shall thereupon become binding, final and conclusive upon all of the parties hereto and enforceable in a court of law. If the Remaining Members dispute relates to an accounting issue and Xxxx Xxxxxx if the Representative and the Purchaser are unable to reconcile their differences in writing within 20 days after written notice of exceptions is delivered to the PurchaserPurchaser (the "Reconciliation Period"), the accounting items in dispute shall be submitted to a mutually acceptable accounting firm selected from among (other than the six largest accounting firms in the United States in terms of gross revenues Accountants) (the "Independent Auditors") for final determination, and the Closing . The Effective Date Net Worth Working Capital calculation shall be deemed adjusted in accordance with the determination of the Independent Auditors and shall become binding, final and conclusive upon all of the parties hereto and enforceable in a court of law. The Independent Auditors shall consider only the accounting items in dispute and shall be instructed to act within 20 days (or such longer period as the Remaining Members Representative and Xxxx Xxxxxx the Purchaser may agree) to resolve all accounting items in dispute. If the Remaining Members do dispute involves a non-accounting issue and such dispute cannot be reconciled within the Reconciliation Period, the dispute shall be settled by a court of competent jurisdiction. If the Representative does not give written notice of any exception within 30 days after the delivery to him of the Special Determination or if the Remaining Members in their discretion give Representative gives written notification of their his acceptance of the Closing Effective Date Net Worth Working Capital prior to the end of such 30 day period, the Closing Effective Date Balance Sheet Working Capital set forth in the Special Determination (as the case may be) shall thereupon become binding, final and conclusive upon all the parties hereto and enforceable in a court of law. Notwithstanding the foregoing, the Special Determination shall not be made unless the Seller has engaged in business or activities outside of the ordinary course of business from October 31, 1998 through the time of Closing and the Xxxx Xxxxxx CFO notifies the Seller of that fact (to which the Seller may take exception pursuant to the same procedures set forth above) within the Special Determination.

Accounting Procedures. (ai) As The Purchaser shall cause Xxxxxxxxx, Xxxx & Company, P.C., or another independent accounting firm chosen by the Purchaser (the "Accountants"), as soon as practicable after the Time of Effective Date and prior to the Closing, but to prepare in any event not later than December 31accordance with generally accepted accounting principles, 1998consistently applied ("GAAP"), Xxxx Xxxxxx shall cause its chief financial officer a report containing an audited balance sheet of the Company as of the close of business on the Effective Date (the "Xxxx Xxxxxx CFO") to prepare the Closing Effective Date Balance Sheet and Sheet"), together with a related unaudited statement of income the Accountants based upon such report and stating that it was prepared in accordance with this Agreement and setting forth the Net Worth (as defined in Section 8.16) of the Companies for the twelve (12) months ended October 31, 1998 setting forth for the period under examination (i) the Closing Date Net Worth, if not sooner agreed upon in writing by Purchaser, Xxxx Xxxxxx, ITC and Huntington Company (the "Special Determination"). If Xxxxxxx Xxxxxxx and Xxxxx Vacheron Alexander, acting jointly (the "Remaining Members"), do Company does not agree that the Special Determination correctly states the Closing Date Net Worth, the Remaining Members Company shall promptly (but not later than 30 45 days after the delivery to it of the Special Determination) give written notice to Xxxx Xxxxxx the Purchaser of any exceptions thereto (in reasonable detail describing the nature of the disagreement asserted). If the Remaining Members Company and Xxxx Xxxxxx the Purchaser reconcile their differences, the Closing Date Net Worth calculation shall be adjusted accordingly and shall thereupon become binding, final and conclusive upon all of the parties hereto and enforceable in a court of law. If the Remaining Members Company and Xxxx Xxxxxx the Purchaser are unable to reconcile their differences in writing within 20 days after written notice of exceptions is delivered to the PurchaserPurchaser (the "Reconciliation Period"), the items in dispute shall be submitted to a mutually acceptable accounting firm (other than the Accountants) selected from among any of the six five largest accounting firms in the United States in terms of gross revenues (the "Independent Auditors") for final determination, and the Closing Date Net Worth calculation shall be deemed adjusted in accordance with the determination of the Independent Auditors and shall become binding, final and conclusive upon all of the parties hereto and enforceable in a court of law. The Independent Auditors shall consider only the items in dispute and shall be instructed to act within 20 days (or such longer period as the Remaining Members Company and Xxxx Xxxxxx the Purchaser may agree) to resolve all items in dispute. If the Remaining Members do Company does not give notice of any exception within 30 45 days after the delivery to it of the Special Determination or if the Remaining Members in their discretion give Company gives written notification of their its acceptance of the Closing Date Net Worth prior to the end of such 30 45 day period, the Closing Date Balance Sheet Net Worth set forth in the Special Determination (as the case may be) shall thereupon become binding, final and conclusive upon all the parties hereto and enforceable in a court of law. Notwithstanding the foregoing, the Special Determination shall not be made unless the Seller has engaged in business or activities outside of the ordinary course of business from October 31, 1998 through the time of Closing and the Xxxx Xxxxxx CFO notifies the Seller of that fact (to which the Seller may take exception pursuant to the same procedures set forth above) within the Special Determination.

Accounting Procedures. (ai) As The Purchaser shall prepare a balance sheet of the Company as of the close of business on the Closing Date (the "Closing Date Balance Sheet") and shall cause KPMG L.L.P., or another independent accounting firm chosen by the Purchaser (the "Accountants"), as soon as practicable and in any case within 120 days after the Time of Closing, but in any event not later than December 31, 1998, Xxxx Xxxxxx shall cause its chief financial officer to provide a report based on agreed upon procedures that are consistent with this Agreement (the "Xxxx Xxxxxx CFO"x) to prepare indicating that the Closing Date Balance Sheet was prepared in accordance with GAAP and a related unaudited statement the terms of income of the Companies for the twelve this Agreement, (12y) months ended October 31, 1998 setting forth for the period under examination Net Asset Value and (iz) setting forth all adjustments required to be made on the Closing Date Balance Sheet in order to make the calculation of Net Worth, if not sooner agreed upon in writing by Purchaser, Xxxx Xxxxxx, ITC and Huntington Asset Value (the "Special Determination"). The Closing Date Balance Sheet shall provide for the accrual referred to in Section 2.1.2(i). If Xxxxxxx Xxxxxxx and Xxxxx Vacheron Alexander, acting jointly (the "Remaining Members"), do Stockholder does not agree that the Special Determination correctly states the Closing Date Net WorthAsset Value, the Remaining Members Stockholder shall promptly (but not later than 30 days after the delivery to him of the Special Determination) give written notice to Xxxx Xxxxxx the Purchaser of any exceptions thereto (in reasonable detail describing the nature of the disagreement assertedsuch disagreement). If the Remaining Members Stockholder and Xxxx Xxxxxx the Purchaser reconcile their differences, the Closing Date Net Worth Asset Value calculation shall be adjusted accordingly and shall thereupon become binding, final and conclusive upon all of the parties hereto and enforceable in a court of law. If the Remaining Members Stockholder and Xxxx Xxxxxx the Purchaser are unable to reconcile their differences in writing within 20 days after written notice of exceptions is delivered to the PurchaserPurchaser (the "Reconciliation Period"), the items in dispute shall be submitted to a mutually acceptable accounting firm (other than the Accountants) selected from among any of the six four largest accounting firms in the United States in terms of gross revenues (the "Independent Auditors") for final determination, and the Closing Date . The Net Worth Asset Value calculation shall be deemed adjusted in accordance with the determination of the Independent Auditors and shall become binding, final and conclusive upon all of the parties hereto and enforceable in a court of law. The Independent Auditors shall consider only the items in dispute and shall be instructed to act within 20 days (or such longer period as the Remaining Members Stockholder and Xxxx Xxxxxx the Purchaser may agree) to resolve all items in dispute. If the Remaining Members do Stockholder does not give written notice of any exception within 30 days after the delivery to him of the Special Determination or if the Remaining Members in their discretion give Stockholder gives written notification of their his acceptance of the Closing Date Net Worth Asset Value prior to the end of such 30 day period, the Closing Date Balance Sheet Net Asset Value set forth in the Special Determination (as the case may be) shall thereupon become binding, final and conclusive upon all the parties hereto and enforceable in a court of law. Notwithstanding the foregoing, the Special Determination shall not be made unless the Seller has engaged in business or activities outside of the ordinary course of business from October 31, 1998 through the time of Closing and the Xxxx Xxxxxx CFO notifies the Seller of that fact (to which the Seller may take exception pursuant to the same procedures set forth above) within the Special Determination.