Common use of Determination of Final Transaction Consideration Clause in Contracts

Determination of Final Transaction Consideration. (i) As soon as practicable, but no later than ninety (90) days after the Closing Date, Purchaser shall prepare and deliver to the Sellers proposed calculations of (A) the Net Working Capital, (B) the amount of Cash and Cash Equivalents, (C) the amount of Closing Date Funded Indebtedness, (D) the amount of Unpaid Seller Expenses, and (E) the resulting Transaction Consideration (which calculations shall collectively be referred to herein as the “Proposed Closing Date Calculations”). If, within five (5) Business Days following written notice to Purchaser of its failure to timely deliver the Proposed Closing Date Calculations in accordance with the foregoing, Purchaser has not delivered the Proposed Closing Date Calculations, then the procedures set forth on Schedule 2.3(c)(i) shall apply. (A) If the Sellers do not give written notice of any dispute (a “Transaction Consideration Dispute Notice”) to Purchaser within forty-five (45) days of receiving the Proposed Closing Date Calculations, the Proposed Closing Date Calculations shall be deemed to set forth the final Net Working Capital, Cash and Cash Equivalents, Closing Date Funded Indebtedness, Unpaid Seller Expenses, and the Transaction Consideration, in each case, for purposes of determining the Actual Adjustment. Prior to the end of such forty-five (45) day period, the Sellers may accept the Proposed Closing Date Calculations by delivering written notice to that effect to Purchaser, in which case the Transaction Consideration will be finally determined when such notice is given. If the Sellers deliver a Transaction Consideration Dispute Notice to Purchaser within such forty-five (45) day period, Purchaser and the Sellers shall use commercially reasonable efforts to resolve the dispute during the thirty (30) day period commencing on the date Purchaser receives the Transaction Consideration Dispute Notice from the Sellers. The parties hereto acknowledge and agree that the Federal Rules of Evidence Rule 408 shall apply to Purchaser and the Sellers during such thirty (30) day period of negotiations and any subsequent dispute arising therefrom and shall apply to the Purchaser with respect to the Proposed Closing Date Calculations. Any item set forth in the Proposed Closing Date Calculations and not objected to in the Transaction Consideration Dispute Notice shall be final and binding on the parties hereto. If the Sellers and Purchaser do not agree upon a final resolution with respect to any disputed items within such thirty (30) day period, then the remaining items in dispute shall be submitted immediately to the dispute resolution group of Xxxxxxx & Marsal, or if such firm is not available, any other nationally-recognized, independent accounting firm (such accounting firm, the “Accounting Firm”). The Accounting Firm shall be instructed, and Purchaser and the Sellers shall use commercially reasonable efforts to cause the Accounting Firm, to render a determination of the applicable dispute within forty-five (45) days after referral of the matter to such Accounting Firm, which determination must be in writing and must set forth, in reasonable detail, the basis therefor. (B) Within twenty (20) days after the engagement of the Accounting Firm, the Sellers and Purchaser shall concurrently present their respective positions with respect to the items set forth in the Transaction Consideration Dispute Notice in the form of a written report, a copy of which shall be concurrently delivered to the other party hereto, and no ex parte conferences, oral examinations, testimony, depositions, discovery or other form of evidence gathering or hearings shall be conducted or allowed; provided that at the Accounting Firm’s request, or as mutually agreed by the Sellers and Purchaser, the Sellers and Purchaser may meet with the Accounting Firm so long as representatives of both the Sellers and Purchaser are present. The Accounting Firm’s determination shall be instructed to be based solely on the written reports submitted to the Accounting Firm by the Sellers and Purchaser, oral submissions by the Sellers and Purchaser at meetings held in compliance with the prior sentence, and on the definitions and other terms included herein (i.e., not on independent review); provided that, in resolving a disputed item, the Accounting Firm may not assign a value to any particular item greater than the greatest value for such item or less than the smallest value for such item, in each case claimed by Purchaser or the Sellers in the written reports presented to the Accounting Firm. The Accounting Firm’s decision with respect to the matters in dispute shall, absent fraud or manifest error, be final and binding on the parties hereto, and any party may seek to enforce such decision in a court of competent jurisdiction in accordance with the terms hereof. (C) The terms of appointment and engagement of the Accounting Firm shall be as agreed upon between the Sellers and Purchaser, and any associated engagement fees shall be initially borne 50% by the Sellers and 50% by Purchaser; provided that such fees shall ultimately be borne as set forth below. All other costs and expenses incurred by the parties hereto in connection with resolving any dispute hereunder before the Accounting Firm shall be borne by the party incurring such cost and expense. The fees and disbursements of the Accounting Firm shall ultimately be allocated between the Sellers and Purchaser in the same proportion that the aggregate amount of the disputed items submitted to the Accounting Firm that are unsuccessfully disputed by each such party (as finally determined by the Accounting Firm) bears to the total amount of such disputed items so submitted. For example, if the disputed items total $1,000 and the Accounting Firm awards $600 in favor of the Sellers’ position, then 60% of the fees and expenses of the Accounting Firm would be borne by Purchaser and 40% of such fees and expenses would be borne by the Sellers. Such determination of the Accounting Firm shall be conclusive and binding upon the parties hereto. The Proposed Closing Date Calculations shall be revised as appropriate to reflect the resolution of any objections thereto pursuant to this Section 2.3(c)(ii) and, as so revised, such Proposed Closing Date Calculations shall be deemed to set forth the final Net Working Capital, Cash and Cash Equivalents, Closing Date Funded Indebtedness, Unpaid Seller Expenses, and Transaction Consideration, in each case, for all purposes hereunder (including the determination of the Actual Adjustment). (iii) Purchaser shall, and shall cause each Group Company to, make its financial records and the working papers of the Group Companies’ accountants available to the Sellers and their accountants and other representatives upon reasonable advance written notice and during normal business hours, at any time during the review by the Sellers and their accountants and representatives of, and the resolution of any objections with respect to, the Proposed Closing Date Calculations pursuant to this Section 2.3(c); provided, that the independent accountants of the Group Companies after the Closing, if any, shall not be obligated to make any such work papers available to the Sellers unless and until the Sellers have signed customary access letters in form and substance reasonably acceptable to such independent accountants.

Determination of Final Transaction Consideration. (i) As soon as practicable, but no later than ninety (90) days after the Closing Date, Purchaser shall prepare and deliver to the Sellers Seller proposed calculations of (A) the Net Working Capital, (B) the amount of Cash and Cash Equivalents, (C) the amount of Closing Date Funded Indebtedness, (D) the amount of Unpaid Seller Expenses, and (E) the resulting Transaction Consideration (which calculations shall collectively be referred to herein as the “Proposed Closing Date Calculations”). If, within five (5) Business Days following written notice to Purchaser of its failure to timely deliver the Proposed Closing Date Calculations in accordance with the foregoing, Purchaser has not delivered the Proposed Closing Date Calculations, then the procedures set forth on Schedule 2.3(c)(i) shall apply. (A) If the Sellers do Seller does not give written notice of any dispute (a “”Transaction Consideration Dispute Notice”) to Purchaser within forty-five thirty (4530) days of receiving the Proposed Closing Date Calculations, the Proposed Closing Date Calculations shall be deemed to set forth the final Net Working Capital, Cash and Cash Equivalents, Closing Date Funded Indebtedness, Unpaid Seller Expenses, and the Transaction Consideration, in each case, for purposes of determining the Actual Adjustment. Prior to the end of such forty-five thirty (4530) day period, the Sellers Seller may accept the Proposed Closing Date Calculations by delivering written notice to that effect to Purchaser, in which case the Transaction Consideration will be finally determined when such notice is given. If the Sellers deliver Seller delivers a Transaction Consideration Dispute Notice to Purchaser within such forty-five thirty (4530) day period, Purchaser and the Sellers Seller shall use commercially reasonable efforts to resolve the dispute during the thirty (30) day period commencing on the date Purchaser receives the Transaction Consideration Dispute Notice from the SellersSeller. The parties hereto acknowledge and agree that the Federal Rules of Evidence Rule 408 shall apply to Purchaser and the Sellers Seller during such thirty (30) day period of negotiations and any subsequent dispute arising therefrom and shall apply to the Purchaser with respect to the Proposed Closing Date Calculations. Any item set forth in the Proposed Closing Date Calculations and not objected to in the Transaction Consideration Dispute Notice shall be final and binding on the parties hereto. If the Sellers Seller and Purchaser do not agree upon a final resolution with respect to any disputed items within such thirty (30) day period, then the remaining items in dispute shall be submitted immediately to the dispute resolution group of Xxxxxxx & Marsal, or if such firm is not available, any other nationally-recognized, independent accounting firm firm, other than Seller’s accountants or Purchaser’s accounting firm, mutually agreed upon by Purchaser and Seller (such accounting firm, the “Accounting Firm”). The Accounting Firm shall be instructed, and Purchaser and the Sellers Seller shall use commercially reasonable efforts to cause the Accounting Firm, to render a determination of the applicable dispute within forty-five (45) days after referral of the matter to such Accounting Firm, which determination must be in writing and must set forth, in reasonable detail, the basis therefor. (B) Within twenty (20) days after the engagement of the Accounting Firm, the Sellers Seller and Purchaser shall concurrently present their respective positions with respect to the items set forth in the Transaction Consideration Dispute Notice in the form of a written report, a copy of which shall be concurrently delivered to the other party hereto, and no ex parte conferences, oral examinations, testimony, depositions, discovery or other form of evidence gathering or hearings shall be conducted or allowed; provided provided, that at the Accounting Firm’s request, or as mutually agreed by the Sellers Seller and Purchaser, the Sellers Seller and Purchaser may meet with the Accounting Firm so long as representatives of both the Sellers Seller and Purchaser are present. The Accounting Firm’s determination shall be instructed to be based solely on the written reports submitted to the Accounting Firm by the Sellers Seller and Purchaser, oral submissions by the Sellers Seller and Purchaser at meetings held in compliance with the prior sentence, and on the definitions and other terms included herein (i.e., not on independent review); provided provided, that, in resolving a disputed item, the Accounting Firm may not assign a value to any particular item greater than the greatest value for such item or less than the smallest value for such item, in each case claimed by Purchaser or the Sellers Seller in the written reports presented to the Accounting Firm. The Accounting Firm’s decision with respect to the matters in dispute shall, absent fraud or manifest error, be final and binding on the parties hereto, and any party may seek to enforce such decision in a court of competent jurisdiction in accordance with the terms hereof. (C) The terms of appointment and engagement of the Accounting Firm shall be as agreed upon between the Sellers Seller and Purchaser, and any associated engagement fees shall be initially borne 50% by the Sellers Seller and 50% by Purchaser; provided provided, that such fees shall ultimately be borne as set forth below. All other costs and expenses incurred by the parties hereto in connection with resolving any dispute hereunder before the Accounting Firm shall be borne by the party incurring such cost and expense. The fees and disbursements of the Accounting Firm shall ultimately be allocated between the Sellers Seller and Purchaser in the same proportion that the aggregate amount of the disputed items submitted to the Accounting Firm that are unsuccessfully disputed by each such party (as finally determined by the Accounting Firm) bears to the total amount of such disputed items so submitted. For example, if the disputed items total $1,000 and the Accounting Firm awards $600 in favor of the SellersSeller’ position, then 60% of the fees and expenses of the Accounting Firm would be borne by Purchaser and 40% of such fees and expenses would be borne by the SellersSeller. Such determination of the Accounting Firm shall be conclusive and binding upon the parties hereto. The Proposed Closing Date Calculations shall be revised as appropriate to reflect the resolution of any objections thereto pursuant to this Section 2.3(c)(ii2.3(b)(ii) and, as so revised, such Proposed Closing Date Calculations shall be deemed to set forth the final Net Working Capital, Cash and Cash Equivalents, Closing Date Funded Indebtedness, Unpaid Seller Expenses, and Transaction Consideration, in each case, for all purposes hereunder (including the determination of the Actual Adjustment). (iii) Purchaser shall, and shall cause each Group Company to, make its financial records and the working papers of the Group Companies’ accountants available to the Sellers Seller and their its accountants and other representatives upon reasonable advance written notice and during normal business hours, at any time during the review by the Sellers Seller and their its accountants and representatives of, and the resolution of any objections with respect to, the Proposed Closing Date Calculations pursuant to this Section 2.3(c2.3(b); provided, that the independent accountants of the Group Companies after the Closing, if any, shall not be obligated to make any such work papers available to the Sellers Seller unless and until the Sellers have Seller has signed customary access letters in form and substance reasonably acceptable to such independent accountants.

Determination of Final Transaction Consideration. (i) As soon as practicable, but no later than ninety (90) days after the Closing Date, Purchaser shall prepare and deliver to the Sellers proposed calculations of (A) the Net Working Capital, (B) the amount of Cash and Cash Equivalents, (C) the amount of Closing Date Funded Indebtedness, (D) the amount of Unpaid Seller Expenses, and (E) the resulting Transaction Consideration (which calculations shall collectively be referred to herein as the “Proposed Closing Date Calculations”). If, within five (5) Business Days following written notice to Purchaser of its failure to timely deliver the Proposed Closing Date Calculations in accordance with the foregoing, Purchaser has not delivered the Proposed Closing Date Calculations, then the procedures set forth on Schedule 2.3(c)(i) shall apply. (A) If the Sellers do not give written notice of any dispute (a “Transaction Consideration Dispute Notice”) to Purchaser within forty-five (45) days of receiving the Proposed Closing Date Calculations, the Proposed Closing Date Calculations shall be deemed to set forth the final Net Working Capital, Cash and Cash Equivalents, Closing Date Funded Indebtedness, Unpaid Seller Expenses, and the Transaction Consideration, in each case, for purposes of determining the Actual Adjustment. Prior to the end of such forty-five (45) day period, the Sellers may accept the Proposed Closing Date Calculations by delivering written notice to that effect to Purchaser, in which case the Transaction Consideration will be finally determined when such notice is given. If the Sellers deliver a Transaction Consideration Dispute Notice to Purchaser within such forty-five (45) day period, Purchaser and the Sellers shall use commercially reasonable efforts to resolve the dispute during the thirty (30) day period commencing on the date Purchaser receives the Transaction Consideration Dispute Notice from the Sellers. The parties hereto acknowledge and agree that the Federal Rules of Evidence Rule 408 shall apply to Purchaser and the Sellers during such thirty (30) day period of negotiations and any subsequent dispute arising therefrom and shall apply to the Purchaser with respect to the Proposed Closing Date Calculations. Any item set forth in the Proposed Closing Date Calculations and not objected to in the Transaction Consideration Dispute Notice shall be final and binding on the parties hereto. If the Sellers and Purchaser do not agree upon a final resolution with respect to any disputed items within such thirty (30) day period, then the remaining items in dispute shall be submitted immediately to the dispute resolution group of Xxxxxxx & Marsal, or if such firm is not available, any other nationally-recognized, independent accounting firm (such accounting firm, the “Accounting Firm”). The Accounting Firm shall be instructed, and Purchaser and the Sellers shall use commercially reasonable efforts to cause the Accounting Firm, to render a determination of the applicable dispute within forty-five (45) days after referral of the matter to such Accounting Firm, which determination must be in writing and must set forth, in reasonable detail, the basis therefor. (B) Within twenty (20) days after the engagement of the Accounting Firm, the Sellers and Purchaser shall concurrently present their respective positions with respect to the items set forth in the Transaction Consideration Dispute Notice in the form of a written report, a copy of which shall be concurrently delivered to the other party hereto, and no ex parte conferences, oral examinations, testimony, depositions, discovery or other form of evidence gathering or hearings shall be conducted or allowed; provided that at the Accounting Firm’s request, or as mutually agreed by the Sellers and Purchaser, the Sellers and Purchaser may meet with the Accounting Firm so long as representatives of both the Sellers and Purchaser are present. The Accounting Firm’s determination shall be instructed to be based solely on the written reports submitted to the Accounting Firm by the Sellers and Purchaser, oral submissions by the Sellers and Purchaser at meetings held in compliance with the prior sentence, and on the definitions and other terms included herein (i.e., not on independent review); provided that, in resolving a disputed item, the Accounting Firm may not assign a value to any particular item greater than the greatest value for such item or less than the smallest value for such item, in each case claimed by Purchaser or the Sellers in the written reports presented to the Accounting Firm. The Accounting Firm’s decision with respect to the matters in dispute shall, absent fraud or manifest error, be final and binding on the parties hereto, and any party may seek to enforce such decision in a court of competent jurisdiction in accordance with the terms hereof. (C) The terms of appointment and engagement of the Accounting Firm shall be as agreed upon between the Sellers and Purchaser, and any associated engagement fees shall be initially borne 50% by the Sellers (allocated among Blocker Seller and Midco Holdings per the Blocker Corp Pro Rata Portion and the Midco Holdings Pro Rata Portion, respectively) and 50% by Purchaser; provided that such fees shall ultimately be borne as set forth below. All other costs and expenses incurred by the parties hereto in connection with resolving any dispute hereunder before the Accounting Firm shall be borne by the party incurring such cost and expense. The fees and disbursements of the Accounting Firm shall ultimately be allocated between the Sellers (allocated among Blocker Seller and Midco Holdings per the Blocker Corp Pro Rata Portion and the Midco Holdings Pro Rata Portion, respectively) and Purchaser in the same proportion that the aggregate amount of the disputed items submitted to the Accounting Firm that are unsuccessfully disputed by each such party (as finally determined by the Accounting Firm) bears to the total amount of such disputed items so submitted. For example, if the disputed items total $1,000 and the Accounting Firm awards $600 in favor of the Sellers’ position, then 60% of the fees and expenses of the Accounting Firm would be borne by Purchaser and 40% of such fees and expenses would be borne by the SellersSellers (allocated among Blocker Seller and Midco Holdings per the Blocker Corp Pro Rata Portion and the Midco Holdings Pro Rata Portion, respectively). Such determination of the Accounting Firm shall be conclusive and binding upon the parties hereto. The Proposed Closing Date Calculations shall be revised as appropriate to reflect the resolution of any objections thereto pursuant to this Section ‎Section 2.3(c)(ii) and, as so revised, such Proposed Closing Date Calculations shall be deemed to set forth the final Net Working Capital, Cash and Cash Equivalents, Closing Date Funded Indebtedness, Unpaid Seller Expenses, and Transaction Consideration, in each case, for all purposes hereunder (including the determination of the Actual Adjustment). (iii) Purchaser shall, and shall cause each Group Company to, make its financial records and the working papers of the Group Companies’ accountants available to the Sellers and their accountants and other representatives upon reasonable advance written notice and during normal business hours, at any time during the review by the Sellers and their accountants and representatives of, and the resolution of any objections with respect to, the Proposed Closing Date Calculations pursuant to this Section 2.3(c); provided, that the independent accountants of the Group Companies after the Closing, if any, shall not be obligated to make any such work papers available to the Sellers unless and until the Sellers have signed customary access letters in form and substance reasonably acceptable to such independent accountants.

Determination of Final Transaction Consideration. (i) As soon as practicable, but no later than ninety (90) days after the Closing DateDate (as the same may be extended by mutual agreement in writing of Parent and the Owner Representative), Purchaser Parent shall prepare and deliver to the Sellers Owner Representative, Xxxxxx’s good faith proposed calculations of (A) the Net Working Capital, (B) the amount of Cash and Cash Equivalents, (C) the amount of Closing Date Funded Indebtedness, (D) the amount of Unpaid Seller Expenses, and (E) the resulting Transaction Consideration (which calculations shall collectively be referred to herein as the “Proposed Closing Date Calculations”)) of each of (A) the Net Working Capital Adjustment; (B) the amount of Cash and Cash Equivalents; (C) the amount of Closing Indebtedness; (D) the amount of Unpaid Transaction Expenses; (E) the portion of the Principal Loan Amount to which the Retirees are entitled; (F) the portion of the Capital Account Amount to which the Retirees are entitled; (G) the Attest Business Purchase Price; and (F) the Transaction Consideration, in each case, including reasonably detailed calculations of the components thereof. If, within five (5) Business Days following written notice to Purchaser of its failure If Parent fails to timely deliver any of the Proposed Closing Date Calculations in accordance with the foregoing, Purchaser has not delivered then the Actual Adjustment shall be deemed to equal zero. With respect to any component of the Transaction Consideration for which Parent proposes an adjustment from the amounts set forth in the Partnership’s calculation of the Estimated Transaction Consideration, the Proposed Closing Date Calculations, then the procedures Calculations shall set forth on Schedule 2.3(c)(i) shall applythe amount of such adjustment and a reasonably detailed description of the basis for such adjustment. Parent agrees to prepare the Proposed Closing Date Calculations in accordance with the Accounting Principles and the definitions and other applicable provisions of this Agreement. (Aii) If the Sellers do Owner Representative does not give written notice of any dispute (a the “Transaction Consideration Dispute Notice”) to Purchaser Parent within forty-five (45) days of receiving the Proposed Closing Date Calculations, the parties agree that the Proposed Closing Date Calculations shall be deemed to set forth the final Net Working CapitalCapital Adjustment, the amount of Cash and Cash Equivalents, the amount of Closing Date Funded Indebtedness, the amount of Unpaid Seller Transaction Expenses, the portion of the Principal Loan Amount to which the Retirees are entitled, the portion of the Capital Account Amount to which the Retirees are entitled, the Attest Business Purchase Price and the Transaction Consideration, in each case, for purposes of determining the Actual Adjustment. Prior to the end of such forty-five (45) day period, the Sellers Owner Representative may accept the Proposed Closing Date Calculations by delivering written notice to that effect to PurchaserParent, in which case the Transaction Consideration will be finally determined when such notice is given. If the Sellers deliver Owner Representative delivers a Transaction Consideration Dispute Notice (which shall include a reasonably detailed description of the basis of each disputed item and the alternative calculation the Owner Representative proposes, as well as supporting documentation) to Purchaser Parent within such forty-five (45) day period, Purchaser Parent and the Sellers Owner Representative shall use commercially reasonable efforts to resolve in good faith the dispute disputes in the Transaction Consideration Dispute Notice during the thirty (30) day period commencing on the date Purchaser Parent receives the Transaction Consideration Dispute Notice from the SellersOwner Representative. Any item or amount that is not included in the Transaction Consideration Dispute Notice shall be final and binding on the parties. The parties hereto acknowledge and agree that the Federal Rules of Evidence Rule 408 shall apply to Purchaser Parent and the Sellers Owner Representative during such thirty (30) day period and any subsequent dispute arising therefrom. To the extent any of the items in dispute (such matters, the “Disputed Items”) are resolved and agreed to in writing between Parent and the Owner Representative during such thirty (30) day period of negotiations and any subsequent dispute arising therefrom and shall apply to the Purchaser with respect to the Proposed Closing Date Calculations. Any item set forth in the Proposed Closing Date Calculations and not objected to in the Transaction Consideration Dispute Notice negotiations, such resolution shall be final and binding on the parties heretowith respect to the specific items so resolved. If the Sellers Owner Representative and Purchaser Parent do not agree upon a final resolution with respect to any disputed items Disputed Items within such thirty (30) day period, then then, at the request of either the Owner Representative or Parent, the remaining items in dispute shall be submitted immediately promptly to the dispute resolution group of Xxxxxxx & MarsalDeloitte, or or, if such firm is not availabledeclines to be retained to resolve the dispute, any other nationally-another nationally recognized, independent accounting firm reasonably acceptable to Parent and the Owner Representative (such accounting firmin either case, the “Accounting Firm”). Any item not specifically submitted to the Accounting Firm for evaluation shall be deemed final and binding on Parent and the Owner Representative (as set forth in the Proposed Closing Date Calculations, Transaction Consideration Dispute Notice or unless otherwise resolved in writing by Parent and the Owner Representative). The Accounting Firm shall be instructed, requested by the Owner Representative and Purchaser and the Sellers shall use commercially reasonable efforts to cause the Accounting Firm, Parent to render a determination of the applicable dispute each Disputed Item within forty-five thirty (4530) days after referral of the matter to such Accounting Firm, which determination must be in writing and must set forth, in reasonable detail, the basis therefor. therefor and must be based solely on (Bi) Within twenty the definitions and other applicable provisions of this Agreement; (20ii) a single written presentation (which presentations shall be limited to the items specifically submitted to the Accounting Firm for evaluation) submitted by each of Parent and the Owner Representative to the Accounting Firm within fifteen (15) days after the engagement of the Accounting Firm, the Sellers and Purchaser shall concurrently present their respective positions with respect to the items set forth in the Transaction Consideration Dispute Notice in the form of a written report, a copy of thereof (which shall be concurrently delivered to the other party hereto, and no ex parte conferences, oral examinations, testimony, depositions, discovery or other form of evidence gathering or hearings shall be conducted or allowed; provided that at the Accounting Firm’s request, or as mutually agreed by the Sellers and Purchaser, the Sellers and Purchaser may meet with the Accounting Firm so long shall promptly forward to Parent or the Owner Representative, as representatives applicable, after both presentations have been received or the time for submission of both the Sellers presentations has expired); and Purchaser are present. The Accounting Firm’s determination shall be instructed to be based solely on the (iii) one written reports response submitted to the Accounting Firm by within ten (10) days after receipt of each such presentation (which the Sellers and PurchaserAccounting Firm shall forward to Parent or the Owner Representative, oral submissions by as applicable, after both responses have been received or the Sellers and Purchaser at meetings held in compliance with the prior sentencetime for submission of responses has expired), and on the definitions and other terms included herein (i.e., not on independent review); provided thatprovided, in resolving a disputed itemhowever, that the Accounting Firm may not assign ask either party clarifying questions and such party shall have a value reasonable opportunity to any particular item greater than the greatest value for respond by providing written responses to such item or less than the smallest value for such item, in each case claimed by Purchaser or the Sellers in the written reports presented questions to the Accounting FirmFirm and the other party. The Such determination by the Accounting Firm’s decision with respect Firm shall be conclusive and binding on each party to the matters in dispute shallthis Agreement, absent fraud or manifest error. Neither Parent, be final and binding on Merger Sub, the parties heretoSurviving Entity, and the Owner Representative, any party may seek to enforce such decision in a court Owner, the Group Companies, nor any of competent jurisdiction in accordance their respective Affiliates, shall have any ex parte conversations or meetings with the terms hereof. (C) Accounting Firm without the prior consent of the other parties. The terms of appointment and engagement of the Accounting Firm shall be as reasonably agreed upon between the Sellers Owner Representative and PurchaserParent, and any associated engagement fees initially shall be initially borne 50% by the Sellers Owner Representative and 50% by PurchaserParent; provided that such fees and any other costs and expenses of the Accounting Firm ultimately shall ultimately be borne by Parent and the Owner Representative in the same proportion that the aggregate amount of the items unsuccessfully disputed by such party (as set forth belowdetermined by the Accounting Firm) bears to the total disputed amount of items submitted to the Accounting Firm. All For example, if Owner Representative claims that the appropriate adjustments are $1,000 greater than the amount determined by Parent, and if the Accounting Firm ultimately resolves the disputed amount of items by awarding to the Owner Representative $300 of the $1,000 contested, then the fees, costs and expenses of the Accounting Firm will be allocated 30% (i.e., 300 ÷ 1,000) to Parent and 70% (i.e., 700 ÷ 1,000) to the Owner Representative. Except as provided in the preceding sentence, all other costs and expenses incurred by the parties hereto in connection with resolving any dispute hereunder before the Accounting Firm shall be borne by the party incurring such cost and expense. The fees and disbursements of the Accounting Firm shall ultimately be allocated resolve each Disputed Item by choosing a value equal to or between the Sellers and Purchaser value proposed by Parent in its presentation (which shall not be more favorable to Parent than the value proposed by Parent in the same proportion that Proposed Closing Date Calculations) or by the aggregate amount of the disputed items submitted Owner Representative in its presentation (which shall not be more favorable to the Accounting Firm that are unsuccessfully disputed by each such party (as finally determined Owner Representative than the value proposed by the Accounting Firm) bears to Owner Representative in the total amount of such disputed items so submitted. For example, if the disputed items total $1,000 and the Accounting Firm awards $600 in favor of the Sellers’ position, then 60% of the fees and expenses of the Accounting Firm would be borne by Purchaser and 40% of such fees and expenses would be borne by the Sellers. Such determination of the Accounting Firm shall be conclusive and binding upon the parties heretoTransaction Consideration Dispute Notice). The Proposed Closing Date Calculations shall be revised as appropriate to reflect the resolution of any objections thereto pursuant to this Section 2.3(c)(ii2.10(d)(ii) and, as so revised, such Proposed Closing Date Calculations shall be deemed to set forth the final calculation of the Net Working CapitalCapital Adjustment, the amount of Cash and Cash Equivalents, the amount of Closing Date Funded Indebtedness, the amount of Unpaid Seller Transaction Expenses, the portion of the Principal Loan Amount to which the Retirees are entitled, the portion of the Capital Account Amount to which the Retirees are entitled, the Attest Business Purchase Price and the Transaction Consideration, in each case, for all purposes hereunder (including the determination of the Actual Adjustment). (iii) Purchaser From and after the delivery of the Proposed Closing Date Calculations until the date that the Actual Adjustment is determined in accordance with this Section 2.10(d), the Surviving Entity shall, and shall cause each Group Company of its Subsidiaries to, make provide reasonable access to its financial records and the working papers of the Group Companies’ accountants available personnel to the Sellers Owner Representative and their accountants its Representatives at reasonable times and other representatives upon reasonable advance written prior notice and during normal business hours, at any time during the review by the Sellers and their accountants and representatives Owner Representative of, and the resolution of any objections with respect to, the Proposed Closing Date Calculations pursuant to Calculations. (iv) The parties agree that the procedures set forth in this Section 2.3(c)2.10(d) for resolving disputes with respect to the Proposed Closing Date Calculations shall be the sole and exclusive method for resolving any such disputes; provided, that this provision shall not prohibit Parent or the independent accountants Owner Representative from instituting litigation to enforce any final determination of the Group Companies after Transaction Consideration by the ClosingAccounting Firm pursuant to Section 2.10(d)(ii), if anyor to compel any party to this Agreement to submit any dispute arising in connection with this Section 2.10(d) to the Accounting Firm pursuant to and in accordance with the terms and conditions of this Section 2.10(d), in any court or other tribunal of competent jurisdiction in accordance with Section 10.15 or prohibit Parent or the Surviving Entity from making any claim under the RWI Policy. The substance of the Accounting Firm’s determination shall not be obligated subject to make review or appeal, absent a showing of fraud or manifest error. It is the intent of the parties to this Agreement to have any such work papers available final determination of the Transaction Consideration by the Accounting Firm proceed in an expeditious manner; provided, that any deadline or time period contained herein may be extended or modified by the written agreement of Parent and the Owner Representative and the parties agree that the failure of the Accounting Firm to strictly conform to any deadline or time period contained herein shall not be a basis for seeking to overturn any determination rendered by the Accounting Firm which otherwise conforms to the Sellers unless and until the Sellers have signed customary access letters in form and substance reasonably acceptable to such independent accountantsterms of this Section 2.10(d).