AT THE COMPLETION OF ANY CALENDAR MONTH THEREAFTER DURING WHICH THE
HOLDBACK ACCELERATION EVENT OCCURS AS SET FORTH IN SECTION 12.5(B) BELOW).
THE
ADJUSTMENT AMOUNT WILL ACCRUE INTEREST AT THE RATE OF TEN PERCENT (10%) PER
ANNUM FROM THE CLOSING DATE.
THE ADJUSTMENT AMOUNT, INCLUDING ANY ACCRUED
INTEREST, WILL NOT BE MADE PART OF THE HOLDBACK AMOUNT, NOR WILL IT BE SUBJECT
TO ANY INDEMNIFICATION OR OTHER CLAIMS BY PURCHASER OR ANY PURCHASER
INDEMNITEES, EXCEPT AS PROVIDED IN SECTION 3.8(B).
SECTION 3.7
FREE CASH FLOW PAYMENT.
AS OF THE CLOSING DATE, THE COMPANY
SHALL HAVE DISTRIBUTED TO ITS MEMBERS ON A PRO RATA BASIS AS SET FORTH ON
SCHEDULE 3.7, THE AGGREGATE FREE CASH FLOW (AS SUCH TERM IS DEFINED IN THE DS
OPERATING AGREEMENT, WHICH AMOUNT REFLECTS ALL PRIOR DISTRIBUTIONS OF FREE CASH
FLOW, INCLUDING BUT NOT LIMITED TO THE BCCM SPECIAL DISTRIBUTION AMOUNT (AS
DEFINED IN THE DS OPERATING AGREEMENT)), SINCE APRIL 29, 2005, THROUGH AND
INCLUDING THE BALANCE SHEET DATE (THE "CLOSING FREE CASH FLOW PAYMENT").
SECTION 3.8
POST-CLOSING FREE CASH FLOW PAYMENT.
(A)
AS PROMPTLY AS PRACTICABLE, BUT IN ANY EVENT WITHIN SIXTY (60) CALENDAR
DAYS FOLLOWING THE CLOSING DATE, PURCHASER SHALL DELIVER TO SELLERS THE CLOSING
BALANCE SHEET.
IF WITHIN THIRTY (30) DAYS FOLLOWING DELIVERY OF THE CLOSING
BALANCE SHEET, NONE OF CROMPTON, THE BCCM AGENT OR THE MANAGEMENT MEMBERS' AGENT
HAVE GIVEN PURCHASER NOTICE OF AN OBJECTION TO THE CLOSING BALANCE SHEET
(INCLUDING A STATEMENT OF THE BASIS OF SUCH OBJECTION), THEN THE CLOSING BALANCE
SHEET WILL BE DETERMINATIVE IN COMPUTING THE FREE CASH FLOW ADJUSTMENT AMOUNT,
BASED ON THE FORMULA SET FORTH IN SECTION 3.8(B) HEREOF. IF ANY OF CROMPTON, THE
BCCM
16
AGENT OR THE MANAGEMENT MEMBERS' AGENT GIVES SUCH NOTICE OF OBJECTION, CROMPTON,
THE BCCM AGENT, THE MANAGEMENT MEMBERS' AGENT AND PURCHASER SHALL ATTEMPT A GOOD
FAITH RESOLUTION OF THE DISPUTE.
IF NO SUCH RESOLUTION IS REACHED WITHIN A
PERIOD OF TWENTY (20) DAYS FROM SUCH OBJECTION, THEN THE ISSUES IN DISPUTE WILL
BE SUBMITTED TO THE ACCOUNTANTS FOR RESOLUTION. IF ISSUES IN DISPUTE ARE
SUBMITTED TO THE ACCOUNTANTS FOR RESOLUTION, (I) EACH PARTY WILL FURNISH TO THE
ACCOUNTANTS SUCH WORKPAPERS AND OTHER DOCUMENTS AND INFORMATION RELATING TO THE
DISPUTED ISSUES AS THE ACCOUNTANTS MAY REQUEST AND ARE AVAILABLE TO THAT PARTY
OR ITS SUBSIDIARIES (OR ITS INDEPENDENT PUBLIC ACCOUNTANTS), AND WILL BE
AFFORDED THE OPPORTUNITY TO PRESENT TO THE ACCOUNTANTS ANY MATERIAL RELATING TO
THE DETERMINATION AND TO DISCUSS THE DETERMINATION WITH THE ACCOUNTANTS; (II)
THE DETERMINATION BY THE ACCOUNTANTS, AS SET FORTH IN A NOTICE DELIVERED TO BOTH
PARTIES BY THE ACCOUNTANTS AS SOON AS PRACTICABLE FOLLOWING SUBMISSION OF SUCH
DISPUTE TO THE ACCOUNTANTS, WILL BE BINDING AND CONCLUSIVE ON THE PARTIES; AND
(III) SELLERS ON THE ONE HAND AND PURCHASER ON THE OTHER HAND WILL EACH BEAR
FIFTY PERCENT (50%) OF THE FEES OF THE ACCOUNTANTS FOR SUCH DETERMINATION.
(B)
AS SOON AS PRACTICABLE FOLLOWING THE DATE ON WHICH THE CLOSING BALANCE
SHEET IS FINALLY ACCEPTED PURSUANT