Common use of Final Balance Sheet Clause in Contracts

Final Balance Sheet. (a) The Parties shall cause the Auditors, within sixty (60) days following the Closing Date, at the Buyer's sole cost and expense, to deliver to each of the Parties, a balance sheet regarding the Consolidated Net Worth as of January 31, 2002 (as it may be adjusted pursuant to this Section 1.6.2, the "Final Balance Sheet"), together with a written notice stating whether there is a Net Worth Deficiency or a Net Worth Surplus and, if applicable, specifying the amount thereof. During the preparation of the Final Balance Sheet, the Seller shall have the right to be present at each discussion between the Buyer and the Auditors in respect of the audit and to observe the work performed by the Buyer and the Auditors in connection with their preparation of the Final Balance Sheet. After the Closing, the Buyer shall allow the Auditors access to such books and records that were transferred to the Buyer by the Seller at the Closing as the Auditors may reasonably require for such audit. The Final Balance Sheet shall be prepared in accordance with GAAP as the Auditors determine is applicable to an Exchange Act reporting company with registered equity securities. In the event the Closing occurs prior to January 31, 2002, the Buyer shall, from the Closing Date through January 31, 2002, operate the Homebuilding Business in the ordinary course of business, which shall include the sale-leaseback of model homes. (b) If either of the Parties disputes any item(s) on the Final Balance Sheet, such disputing Party shall notify the other Party in writing thereof (the "Notice of Dispute") within thirty (30) days after the Auditor's delivery of the Final Balance Sheet to each of the Buyer and the Seller, which Notice of Dispute shall set forth in reasonable detail the items in dispute, the basis for dispute and the amounts being disputed. If neither of the Parties delivers a Notice of Dispute within the aforesaid thirty (30)-day period, the Final Balance Sheet shall become final and binding upon, and non-appealable by, all Parties at the end of such period and any Closing Refund or Additional Consideration evidenced by the Final Balance Sheet delivered pursuant to Section 1.6.2, if applicable, shall be paid pursuant to Section 1.6.1. (c) If either of the Parties timely delivers a Notice of Dispute to the other Party, the Representative and the Buyer shall attempt in good faith to resolve such dispute(s). If the Representative and the Buyer are unable to resolve any disputed item(s) within ten (10) business days after the non-disputing Party's receipt of the Notice of Dispute, such disputed item(s) shall be submitted by the disputing Party within five (5) days after the expiration of such ten (10) business day period to one of the "Big 5" accounting firms which is independent of both the Seller and the Buyer and not heretofore engaged by either Party, chosen with the mutual consent of the Representative and the Buyer. This accounting firm shall be instructed to resolve such disputed item(s) based upon the presentations of the Seller and the Buyer within twenty (20) days after the initial submission as aforesaid. The resolution of disputes by the accounting firm so selected shall be set forth in writing and shall become final and binding upon, and non-appealable by, all Parties, and the Final Balance Sheet shall become final and binding upon the date of such resolution. The costs and expenses of such resolution, including, without limitation, the costs and fees of the efforts of the accounting firm retained to resolve such dispute, shall be paid by the losing party. (d) Between the Closing Date and the completion of the Final Balance Sheet, the Buyer shall afford the Seller and its representatives reasonable access during normal working hours to all books, records, correspondence, files, financial statements, operating data and all other information with respect to the business of the Consolidated Forecast Entities as in existence prior to the Closing Date, and shall provide to the Seller, the Auditors and their respective representatives such operating and financial data and any other information with respect to the business of the Consolidated Forecast Entities, as in existence prior to the Closing Date as they may from time to time reasonably request for the purpose of preparing the Final Balance Sheet and resolving any disputed items. The Seller shall perform those procedures normally performed in a year-end closing and take such other reasonable measures as are reasonably necessary to prepare the Final Balance Sheet. The Buyer shall make reasonably available to the Seller the appropriate officers and employees of the business of the Seller for purposes of assisting the Seller, the Auditors or their respective representatives, at no cost to Seller, in the preparation of the Final Balance Sheet and resolving any disputed items.

Final Balance Sheet. (a) The Parties Company and Nyer shall cause the Auditors, within sixty (60) days following confirm the Closing Date, at Date Balance Sheet (together with the Buyer's sole cost Certificate of Liabilities) and expense, to deliver to each of the Parties, a balance sheet regarding the Consolidated Net Worth as of January 31, 2002 items set forth therein (as it may be adjusted pursuant to this Section 1.6.2, the "“Final Balance Sheet"”), together with a written notice stating whether there is a Net Worth Deficiency or a Net Worth Surplus and, if applicable, specifying the amount thereof. During the preparation assistance of the Final Balance SheetCompany’s senior financial staff and Wolf & Company, the Seller shall have the right to be present at each discussion between the Buyer and the Auditors in respect of the audit and to observe the work performed by the Buyer and the Auditors in connection with their preparation of the Final Balance Sheet. After the ClosingP.C., the Buyer shall allow the Auditors access to such books and records that were transferred to the Buyer by the Seller at the Closing as the Auditors may reasonably require for such audit. The Final Balance Sheet shall be prepared in accordance with GAAP as the Auditors determine is applicable to an Exchange Act reporting company with registered equity securities. In the event the Closing occurs prior to January 31, 2002, the Buyer shall, from the Closing Date through January 31, 2002, operate the Homebuilding Business in the ordinary course of business, which shall include the sale-leaseback of model homes. (b) If either of the Parties disputes any item(s) on the Final Balance Sheet, such disputing Party shall notify the other Party in writing thereof (the "Notice of Dispute") within thirty (30) days after the Auditor's delivery Closing Date. If the Company and Nyer are unable to agree upon a Final Balance Sheet within such period, the Company and Nyer agree to retain the Boston office of a regionally recognized accounting firm acceptable to Nyer and the Company (the “Accounting Referee”) to promptly review those items or amounts in the calculations of the Final Balance Sheet as to each of the Buyer which Nyer and the SellerCompany disagree. Nyer and the Company shall have five (5) Business Days following the expiration of such thirty (30) day period to select the Accounting Referee, which Notice and if they are unable to agree on an Accounting Referee in that period then instead within the same period each shall select its own regionally recognized accounting firm to represent it in selecting an Accounting Referee and shall notify the other in writing of Dispute such appointment. The regionally recognized accounting firms timely chosen by Nyer and the Company shall set forth then in reasonable detail turn select one regionally recognized accounting firm not then acting as the items in disputeaccounting firm or the principal outside accountant for either Nyer or the Company, and their selection shall then be designated as the Accounting Referee. If Nyer or the Company does not select a firm within the allotted time, the basis for dispute and other party’s choice shall then be designated as the sole Accounting Referee. Once selected as set out above, the Accounting Referee shall consider only those items or amounts being disputed. If neither in the calculation of the Parties delivers a Notice of Dispute within the aforesaid thirty (30)-day period, the Final Balance Sheet that are the subject of dispute. The Accounting Referee shall become final deliver to Nyer and binding uponthe Company, as promptly as practicable and non-appealable byin any case within thirty (30) days of being referred the matter, all Parties at a report setting forth its determination of the end proper outcome of such period the dispute and any Closing Refund or Additional Consideration evidenced by the adjustments, if any, it believes should be made to the Final Balance Sheet delivered pursuant to Section 1.6.2, if applicable, and the calculations supporting such adjustments. Such report shall be paid pursuant to Section 1.6.1. (c) If either of the Parties timely delivers a Notice of Dispute to the other Party, the Representative and the Buyer shall attempt in good faith to resolve such dispute(s). If the Representative and the Buyer are unable to resolve any disputed item(s) within ten (10) business days after the non-disputing Party's receipt of the Notice of Dispute, such disputed item(s) shall be submitted by the disputing Party within five (5) days after the expiration of such ten (10) business day period to one of the "Big 5" accounting firms which is independent of both the Seller and the Buyer and not heretofore engaged by either Party, chosen with the mutual consent of the Representative and the Buyer. This accounting firm shall be instructed to resolve such disputed item(s) based upon the presentations of the Seller and the Buyer within twenty (20) days after the initial submission as aforesaid. The resolution of disputes by the accounting firm so selected shall be set forth in writing and shall become final and binding upon, and non-appealable by, all Parties, and the Final Balance Sheet shall become final and binding upon the date of Parties and the Final Balance Sheet, as adjusted pursuant to such resolution. The costs and expenses of such resolution, including, without limitation, the costs and fees of the efforts of the accounting firm retained to resolve such disputereport, shall be paid final and binding on the Parties. The cost of the Accounting Referee’s review and report shall be borne equally by Nyer and the losing partyCompany. (db) Between the Closing Date and the completion Upon delivery of the Final Balance Sheet, Nyer and the Buyer Company shall afford recalculate the Seller and its representatives reasonable access during normal working hours to all books, records, correspondence, files, financial statements, operating data and all other information with respect to the business of the Consolidated Forecast Entities as in existence prior to the Closing DateWAG Distribution, and shall provide to make any adjustments thereto as may be required by Section 3.3, based on the Seller, the Auditors and their respective representatives such operating and financial data and any other information with respect to the business of the Consolidated Forecast Entities, as items set forth in existence prior to the Closing Date as they may from time to time reasonably request for the purpose of preparing the Final Balance Sheet and resolving any disputed items(the “Final WAG Distribution”). The Seller shall perform those procedures normally performed in a year-end closing and take such other reasonable measures as are reasonably necessary to prepare If the WAG Distribution paid at Closing exceeds the Final Balance Sheet. The Buyer WAG Distribution (as adjusted by the determination of an Accounting Referee, if applicable), Nyer shall make reasonably available pay to the Seller Company, no later than the appropriate officers Final Payment Date, in cash and employees by wire transfer of immediately available funds, as an adjustment to the business WAG Distribution, an amount equal to the amount of such excess. If the Seller for purposes Final WAG Distribution (as adjusted by the determination of assisting an Accounting Referee, if applicable) exceeds the SellerWAG Distribution paid at Closing, the Auditors or their respective representativesCompany shall pay to Nyer, at no cost to Sellerlater than the Final Payment Date, in cash and by wire transfer of immediately available funds, as an adjustment to the preparation WAG Distribution, an amount equal to the amount of the Final Balance Sheet and resolving any disputed itemssuch excess.

Final Balance Sheet. (a) The Parties shall cause Purchaser and the AuditorsPrincipal, within sixty (60) days following the Closing Dateacting reasonably and in good faith, at the Buyer's sole cost covenant and expense, agree to deliver fully co-operate to each of the Parties, a balance sheet regarding the Consolidated Net Worth as of January 31, 2002 (as it may be adjusted pursuant to this Section 1.6.2, the "Final Balance Sheet"), together with a written notice stating whether there is a Net Worth Deficiency or a Net Worth Surplus and, if applicable, specifying the amount thereof. During the preparation of complete the Final Balance Sheet, in form satisfactory to the Seller shall have the right to be present at each discussion between the Buyer Purchaser and the Auditors in respect Principal and their respective auditors, all acting reasonably, within 30 days of the audit and Closing Date (the "Delivery Date"). Unless notice in writing (the "Dispute Notice") is received by either party from the other raising a dispute (the "Dispute") as to observe the work performed by the Buyer and the Auditors in connection with their preparation final form or content of the Final Balance Sheet. After Sheet within twenty (20) Business Days of the ClosingDelivery Date (the "Deadline"), then the Buyer shall allow the Auditors access to such books and records that were transferred to the Buyer by the Seller at the Closing as the Auditors may reasonably require for such audit. The Final Balance Sheet shall be prepared in accordance with GAAP as deemed to be final and binding upon all parties to this Agreement. If a Dispute Notice is received by either the Auditors determine is applicable to an Exchange Act reporting company with registered equity securities. In Purchaser or the event Principal from the Closing occurs prior to January 31, 2002other on or before the Deadline, the Buyer shall, from Dispute shall be settled by an independent chartered accountant (the Closing Date through January 31, 2002, operate the Homebuilding Business in the ordinary course of business, which shall include the sale-leaseback of model homes"Independent Accountant") appointed under this section. (b) If a Dispute Notice is received by either of the Parties disputes any item(s) Purchaser or the Principal on or before the Final Balance SheetDeadline, such disputing Party then the Purchaser and the Principal, acting reasonably and in good faith, shall notify jointly appoint the other Party in writing thereof (Independent Accountant and shall instruct the "Notice of Dispute") Independent Accountant to determine the Dispute within thirty (30) days after following his appointment. Notwithstanding any other provision herein, the Auditor's delivery determination of the Final Balance Sheet Independent Accountant as to each of the Buyer and the Seller, which Notice of Dispute shall set forth in reasonable detail the items in dispute, the basis for dispute and the amounts being disputed. If neither of the Parties delivers a Notice of Dispute within the aforesaid thirty (30)-day period, the Final Balance Sheet shall become be final and binding upon, and non-appealable by, upon all Parties at the end of such period and any Closing Refund or Additional Consideration evidenced by the Final Balance Sheet delivered pursuant parties to Section 1.6.2, if applicable, shall be paid pursuant to Section 1.6.1this Agreement. (c) If the Purchaser and the Principal fail to jointly appoint the Independent Accountant on or before the tenth (10th) Business Day following receipt by either of the Parties timely delivers a Notice of Dispute to Notice, then the other Party, the Representative Purchaser and the Buyer Principal shall attempt in good faith to resolve such dispute(s). If the Representative and the Buyer are unable to resolve any disputed item(s) within ten (10) business days after the non-disputing Party's receipt of the Notice of Dispute, such disputed item(s) shall be submitted by the disputing Party within a further five (5) days after Business Days, each appoint one arbitrator. The arbitrators so appointed shall then meet and appoint an Independent Auditor. In the expiration of such ten (10) business day period event that either the Purchaser or the Principal fails to one of appoint an arbitrator within the "Big 5" accounting firms which is independent of both required time period, then the Seller and the Buyer and not heretofore engaged by either Party, chosen with the mutual consent of the Representative and the Buyer. This accounting firm sole arbitrator appointed shall be instructed entitled to resolve such disputed item(s) based upon select the presentations of the Seller and the Buyer within twenty (20) days after the initial submission as aforesaid. The resolution of disputes by the accounting firm so selected shall be set forth in writing and shall become final and binding upon, and non-appealable by, all Parties, and the Final Balance Sheet shall become final and binding upon the date of such resolution. The costs and expenses of such resolution, including, without limitation, the costs and fees of the efforts of the accounting firm retained to resolve such dispute, shall be paid by the losing partyIndependent Accountant. (d) Between The Independent Accountant shall have access to the Closing Date and the completion of the Final Balance Sheetbooks, the Buyer shall afford the Seller and its representatives reasonable access during normal working hours to all booksaccounts, records, correspondencevouchers, filescheques, financial statementspapers and documents of, operating data or which may in any manner whatsoever affect the Filtran Group. The Principal and all other information the Purchaser shall co-operate with respect to the business of the Consolidated Forecast Entities as in existence prior to the Closing Date, Independent Accountant and shall provide to all information and documents reasonably requested by the SellerIndependent Accountant. (e) All reasonable fees, disbursements and other costs and expenses associated with the Auditors and their respective representatives such operating and financial data and any other information with respect to the business determination of the Consolidated Forecast Entities, as Dispute by the Independent Accountant in existence prior to accordance with the Closing Date as they may from time to time reasonably request for provisions of this Article VIII shall be borne equally by the purpose of preparing Purchaser and the Final Balance Sheet and resolving any disputed items. The Seller shall perform those procedures normally performed in a year-end closing and take such other reasonable measures as are reasonably necessary to prepare the Final Balance Sheet. The Buyer shall make reasonably available to the Seller the appropriate officers and employees of the business of the Seller for purposes of assisting the Seller, the Auditors or their respective representatives, at no cost to Seller, in the preparation of the Final Balance Sheet and resolving any disputed itemsPrincipal.