SHALL PREPARE AND DELIVER TO PURCHASER, BASED UPON THE BEST INFORMATION
AVAILABLE TO SELLER, A PRELIMINARY SETTLEMENT STATEMENT ESTIMATING THE ADJUSTED
PURCHASE PRICE AFTER GIVING EFFECT TO ALL PURCHASE PRICE ADJUSTMENTS SET FORTH
IN SECTION 2.2 AND THE DEPOSIT. THE ESTIMATE DELIVERED IN ACCORDANCE WITH THIS
SECTION 9.4(A) SHALL CONSTITUTE THE DOLLAR AMOUNT TO BE PAID BY PURCHASER TO
SELLER AT THE CLOSING (THE "CLOSING PAYMENT").
(B)
AS SOON AS REASONABLY PRACTICABLE AFTER THE CLOSING BUT NOT LATER
THAN NINETY (90) DAYS FOLLOWING THE CLOSING DATE, SELLER SHALL PREPARE AND
DELIVER TO PURCHASER A STATEMENT SETTING FORTH THE FINAL CALCULATION OF THE
ADJUSTED PURCHASE PRICE AND SHOWING THE CALCULATION OF EACH ADJUSTMENT, BASED,
TO THE EXTENT POSSIBLE ON ACTUAL CREDITS, CHARGES, RECEIPTS AND OTHER ITEMS
BEFORE AND AFTER THE EFFECTIVE TIME AND TAKING INTO ACCOUNT ALL TITLE DEFECT AND
TITLE BENEFIT ADJUSTMENTS UNDER SECTION 3.4.
SELLER SHALL AT PURCHASER'S
REQUEST SUPPLY REASONABLE DOCUMENTATION AVAILABLE TO SUPPORT ANY CREDIT, CHARGE,
RECEIPT OR OTHER ITEM. AS SOON AS REASONABLY PRACTICABLE BUT NOT LATER THAN THE
30TH DAY FOLLOWING RECEIPT OF SELLER'S STATEMENT HEREUNDER, PURCHASER SHALL
DELIVER TO SELLER A WRITTEN REPORT CONTAINING ANY CHANGES THAT PURCHASER
PROPOSES BE MADE TO SUCH STATEMENT.
THE PARTIES SHALL UNDERTAKE TO AGREE ON THE
FINAL STATEMENT OF THE ADJUSTED PURCHASE PRICE NO LATER THAN ONE HUNDRED FIFTY
(150) DAYS AFTER THE CLOSING DATE.
IN THE EVENT THAT THE PARTIES CANNOT REACH
AGREEMENT WITHIN SUCH PERIOD OF TIME, EITHER PARTY MAY REFER THE REMAINING
MATTERS IN DISPUTE TO ERNST AND YOUNG, OR SUCH OTHER NATIONALLY-RECOGNIZED
INDEPENDENT ACCOUNTING FIRM AS MAY BE ACCEPTED BY PURCHASER AND SELLER, FOR
REVIEW AND FINAL DETERMINATION. THE ACCOUNTING FIRM SHALL CONDUCT THE
ARBITRATION PROCEEDINGS IN HOUSTON, TEXAS IN ACCORDANCE WITH THE COMMERCIAL
ARBITRATION RULES OF THE AMERICAN ARBITRATION ASSOCIATION, TO THE EXTENT SUCH
RULES DO NOT CONFLICT WITH THE TERMS OF THIS SECTION.
THE ACCOUNTING FIRM'S
DETERMINATION SHALL BE MADE WITHIN 30 DAYS
33
AFTER SUBMISSION OF THE MATTERS IN DISPUTE AND SHALL BE FINAL AND BINDING ON
BOTH PARTIES, WITHOUT RIGHT OF APPEAL. IN DETERMINING THE PROPER AMOUNT OF ANY
ADJUSTMENT TO THE PURCHASE PRICE, THE ACCOUNTING FIRM SHALL NOT INCREASE THE
PURCHASE PRICE MORE THAN THE INCREASE PROPOSED BY SELLER NOR DECREASE THE
PURCHASE PRICE MORE THAN THE DECREASE PROPOSED BY PURCHASER, AS APPLICABLE.
THE
ACCOUNTING FIRM SHALL ACT AS AN EXPERT FOR THE LIMITED PURPOSE OF DETERMINING
THE SPECIFIC DISPUTED MATTERS SUBMITTED BY EITHER PARTY AND MAY NOT AWARD
DAMAGES OR PENALTIES TO EITHER PARTY WITH RESPECT TO ANY MATTER.
SELLER AND
PURCHASER SHALL EACH BEAR ITS OWN LEGAL FEES AND OTHER COSTS OF PRESENTING ITS
CASE. EACH PARTY SHALL BEAR ONE-HALF OF THE COSTS AND EXPENSES OF THE ACCOUNTING
FIRM.
WITHIN 10 DAYS AFTER THE DATE ON WHICH THE PARTIES OR THE ACCOUNTING
FIRM, AS APPLICABLE, FINALLY DETERMINES THE DISPUTED MATTERS, (X) PURCHASER
SHALL PAY TO SELLER THE AMOUNT BY WHICH THE ADJUSTED PURCHASE PRICE EXCEEDS THE
CLOSING PAYMENT OR (Y) SELLER SHALL PAY TO PURCHASER THE