Net Costs. Seller shall prepare a report setting forth its determination of the Net Phase III Cost, with a detailed description of such underlying costs and supporting receipts therefor (the “Phase III Net Cost Adjustment Report” and together with the Phase II Net Cost Adjustment Report, the “Net Cost Adjustment Reports”). The Phase III Net Cost Adjustment Report (i) shall be prepared from the Seller’s books and records in accordance with GAAP, consistently applied, and (iii) shall be delivered to Ethanex no later than one (1) day after the Phase III Closing Date. If Ethanex disagrees with Seller’s calculation of the adjustments to the Phase III Purchase Price, Ethanex shall promptly, but in no event later than five (5) days following receipt of the Phase III Net Cost Adjustment Report, deliver to Seller written notice (the “Phase III Net Cost Objection Notice”) describing in reasonable detail its dispute by specifying those items of the Net Phase III Costs as to which it disagrees, together with its determination of such disputed amounts; provided, that Ethanex shall be deemed to have agreed with all items and amounts that are not disputed. If the dispute is not resolved by the parties within five (5) days following the date of Seller’s receipt of the Phase III Net Cost Objection Notice, the parties shall engage an Independent Engineer, which shall resolve the dispute within thirty (30) days following such engagement. The Independent Engineer shall act as an expert and not as an arbitrator to determine, based solely on the written submissions of the Seller, on the one hand, and Ethanex, on the other hand, and not by independent investigation, only the specific items under dispute by the parties. The Independent Engineer shall render a written report as to the resolution of the dispute and the resulting computations. The Independent Engineer’s determination of the disputed items or amounts shall, absent manifest error, be final and binding on the parties. In resolving any disputed item, the Independent Engineer (i) shall be bound by the provisions of this Agreement and (ii) may not assign a value to any item greater than the greatest value for such item claimed by either party in the Phase III Net Cost Adjustment Report or the Phase III Net Cost Objection Notice, as applicable, or less than the smallest value for such item claimed by either party in the Phase III Net Cost Adjustment Report or the Phase III Net Cost Objection Notice, as applicable. Ethanex, on the one hand, or the Seller, on the other hand, shall make appropriate payment to the other of any additional amounts determined to be payable by them in respect of the Phase III Purchase Price within five (5) Business Days following either the resolution of the dispute by the parties or the receipt of the Independent Engineer’s final determination, as the case may be; provided, that to the extent the amount reflected in the Phase III Net Cost Adjustment Report is not in dispute such amount shall be paid before resolution of the dispute by the parties or receipt of the Independent Engineer’s final determination. All fees and costs of the Independent Engineer shall be borne by and allocated between the Seller, on the one hand, and Ethanex, on the other hand, on a pro rata basis based on the differences between the Independent Engineer’s determination of the disputed amounts to the net adjustments to the Purchase Price (as finally determined by the Independent Engineer or the parties) and each of the Seller’s and Ethanex’s respective determinations of such disputed amounts. If Ethanex does not raise any objections to the Phase III Net Cost Adjustment Report within the periods described herein, the Phase III Net Cost Adjustment Report will become final and binding upon all parties.
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Net Costs. Seller shall prepare a report setting forth its determination of the Net Phase III II Cost, with a detailed description of such underlying costs and supporting receipts therefor (the “Phase III Net Cost Adjustment Report” and together with the Phase II Net Cost Adjustment Report, the “Net Cost Adjustment Reports”). The Phase III II Net Cost Adjustment Report (i) shall be prepared from the Seller’s books and records in accordance with GAAP, consistently applied, and (iii) shall be delivered to Ethanex no later than one (1) day after the Phase III II Closing Date. If Ethanex disagrees with Seller’s calculation of the adjustments to the Phase III II Purchase Price, Ethanex shall promptly, but in no event later than five (5) days following receipt of the Phase III II Net Cost Adjustment Report, deliver to Seller written notice (the “Phase III II Net Cost Objection Notice”) describing in reasonable detail its dispute by specifying those items of the Net Phase III II Costs as to which it disagrees, together with its determination of such disputed amounts; provided, that Ethanex shall be deemed to have agreed with all items and amounts that are not disputed. If the dispute is not resolved by the parties within five (5) days following the date of Seller’s receipt of the Phase III II Net Cost Objection Notice, the parties shall engage an Independent Engineer, which shall resolve the dispute within thirty (30) days following such engagement. The Independent Engineer shall act as an expert and not as an arbitrator to determine, based solely on the written submissions of the Seller, on the one hand, and Ethanex, on the other hand, and not by independent investigation, only the specific items under dispute by the parties. The Independent Engineer shall render a written report as to the resolution of the dispute and the resulting computations. The Independent Engineer’s determination of the disputed items or amounts shall, absent manifest error, be final and binding on the parties. In resolving any disputed item, the Independent Engineer (i) shall be bound by the provisions of this Agreement and (ii) may not assign a value to any item greater than the greatest value for such item claimed by either party in the Phase III II Net Cost Adjustment Report or the Phase III II Net Cost Objection Notice, as applicable, or less than the smallest value for such item claimed by either party in the Phase III II Net Cost Adjustment Report or the Phase III II Net Cost Objection Notice, as applicable. Ethanex, on the one hand, or the Seller, on the other hand, shall make appropriate payment to the other of any additional amounts determined to be payable by them in respect of the Phase III II Purchase Price within five (5) Business Days following either the resolution of the dispute by the parties or the receipt of the Independent Engineer’s final determination, as the case may be; provided, that to the extent the amount reflected in the Phase III II Net Cost Adjustment Report is not in dispute such amount shall be paid before resolution of the dispute by the parties or receipt of the Independent Engineer’s final determination. All fees and costs of the Independent Engineer shall be borne by and allocated between the Seller, on the one hand, and Ethanex, on the other hand, on a pro rata basis based on the differences between the Independent Engineer’s determination of the disputed amounts to the net adjustments to the Purchase Price (as finally determined by the Independent Engineer or the parties) and each of the Seller’s and Ethanex’s respective determinations of such disputed amounts. If Ethanex does not raise any objections to the Phase III II Net Cost Adjustment Report within the periods described herein, the Phase III II Net Cost Adjustment Report will become final and binding upon all parties.
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