Common use of Independent Accounting Firm Clause in Contracts

Independent Accounting Firm. If, upon the conclusion of the Resolution Period, or any mutually-agreed upon extension of the Resolution Period, Buyer and Seller are unable to reach agreement on all of the Disputed Items, they will jointly engage and submit the unresolved Disputed Items (the “Unresolved Items”) to the Independent Accounting Firm for resolution in accordance with the terms of this Section 2.2(e). The Independent Accounting Firm (i) will act as an arbitrator to determine, based solely on presentations by Buyer and Seller and not by independent review, only the Unresolved Items, (ii) will make a determination with respect to the Unresolved Items only and in a manner consistent with this Section 2.2(e), (iii) will use the definitions set forth in this Agreement with no consideration given to any modification of such definitions, (iv) will be limited to those adjustments, if any, required to be made for the Closing Statement to comply with the provisions of this Agreement and (v) will make a determination of the Unresolved Items within the range of Buyer’s and Seller’s disagreement. Each Party will use commercially reasonable efforts to furnish to the Independent Accounting Firm such work papers and other documents and information pertaining to the Unresolved Items as the Independent Accounting Firm may reasonably request and will be afforded an opportunity to discuss the Unresolved Items with the Independent Accounting Firm at such hearing as the Independent Accounting Firm will request or permit; provided, that (y) each Party will provide the other Party with a copy of all materials provided to, and communications with, the Independent Accounting Firm and (x) no Party (or any of its Affiliates or Representatives) will engage in any ex parte communication with the Independent Accounting Firm at any time with respect to the Unresolved Items. The Independent Accounting Firm will deliver to Buyer and Seller as promptly as practicable, and will be instructed to deliver no later than thirty (30) days after its engagement, a written report setting forth such calculation. Such determination of the Independent Accounting Firm will be final, conclusive and binding upon Buyer and Seller (absent fraud or manifest error) and Buyer will promptly revise the Closing Statement to reflect such determination upon receipt of such report. The fees and expenses of the Independent Accounting Firm will be borne pro rata as between Buyer, on the one hand, and Seller, on the other hand, based on the proportionate deviation of the respective adjustment amounts for the Unresolved Items proposed by Buyer and Seller, as set forth in the Closing Statement in the case of Buyer and the Dispute Notice in the case of Seller, from the determination of the final adjustment amounts made by the Independent Accounting Firm. The date on which the Closing Net Asset Value and Final Purchase Price are finally determined in accordance with this Section 2.2 is referred to as the “Determination Date.”

Independent Accounting Firm. If, upon the conclusion Each of the Resolution Periodparties shall furnish, or any mutually-agreed upon extension of the Resolution Periodat its own expense, Buyer and Seller are unable to reach agreement on all of the Disputed Items, they will jointly engage and submit the unresolved Disputed Items (the “Unresolved Items”) to the Independent Accounting Firm for resolution in accordance and the other parties hereto with such documents and other written information as the terms of this Section 2.2(e). The Independent Accounting Firm (i) will act as an arbitrator to determine, based solely on presentations by Buyer and Seller and not by independent review, only may request in connection with resolving the Unresolved Items, (ii) will make a determination with respect to the Unresolved Items only and in a manner consistent with this Section 2.2(e), (iii) will use the definitions set forth in this Agreement with no consideration given to any modification of such definitions, (iv) will be limited to those adjustments, if any, required to be made for the Closing Statement to comply with the provisions of this Agreement and (v) will make a determination of the Unresolved Items within the range of Buyer’s and Seller’s disagreementdisputed items. Each Party will use commercially reasonable efforts to party may also furnish to the Independent Accounting Firm such work papers other written information and other documents and information pertaining to the Unresolved Items as the Independent Accounting Firm may reasonably request and will be afforded an opportunity to discuss the Unresolved Items with the Independent Accounting Firm at such hearing as the Independent Accounting Firm will request or permitparty deems relevant; provided, that (y) each Party will provide copies of all such documents and materials shall be concurrently delivered to the other Party with a copy of all parties to the proceedings in the same form and manner as such materials provided to, and communications with, are delivered to the Independent Accounting Firm and (x) no Party (or any of its Affiliates or Representatives) will engage in any ex parte communication with the Independent Accounting Firm at any time with respect to the Unresolved ItemsFirm. The Independent Accounting Firm will deliver may, at their discretion, conduct one or more conferences with respect to Buyer the dispute between Purchaser and Seller, at which conference each party shall have the right to present such additional documents, materials and other information and to be accompanied or represented by such advisors, counsel and accountants as each party shall choose in its sole discretion. Purchaser and Seller shall instruct the Independent Accounting Firm to render their written decision with respect to all matters submitted to them by Purchaser and Seller as promptly as practicable, and will be instructed to deliver no later than thirty (30) days after its engagement, a written report setting forth such calculation. Such determination of the The Independent Accounting Firm will shall determine the proportion of their fees and expenses to be finalpaid by Purchaser and Seller, conclusive and binding upon Buyer respectively, in accordance with the relative merits of the parties’ positions. Purchaser and Seller (absent fraud or manifest error) and Buyer will shall promptly revise pay their respective shares of the Closing Statement to reflect such determination upon receipt of such report. The fees and expenses of the Independent Accounting Firm. The determination of the Independent Accounting Firm will as to all disputed items shall be borne pro rata as between Buyer, on the one hand, final and binding upon Purchaser and Seller, on the other hand, based on the proportionate deviation of the respective adjustment amounts for the Unresolved Items proposed by Buyer and Seller, as set forth in the Closing Statement except in the case of Buyer and manifest error or actual fraud. The disputed amount shall be payable by the Dispute Notice in the case of Seller, from the party owing such amount within five (5) Business Days following resolution or determination of the final adjustment amounts made by the Independent Accounting Firmdispute. The date on which failure of Seller to provide a Notice of Dispute within the Closing Net Asset Value and Final Purchase Price are finally determined in accordance with this Section 2.2 is thirty (30) calendar day time period referred to as in Section 3.02(c) shall be deemed an acceptance by Seller of the “Determination DateSettlement Statement.”

Independent Accounting Firm. If, upon the conclusion of the Resolution Period, or any mutually-agreed upon extension of the Resolution Period, Buyer and Seller Sellers are unable to reach agreement on all of the Disputed Items, they will jointly engage and submit the unresolved Disputed Items (the “Unresolved Items”) to the Independent Accounting Firm for resolution in accordance with the terms of this Section 2.2(e)1.4.4. The Independent Accounting Firm (i) will act as an arbitrator to determine, based solely on presentations by Buyer and Seller and not by independent review, only the Unresolved Items, (ii) will make a determination with respect to the Unresolved Items only and in a manner consistent with this Section 2.2(e)1.4.4, (iiiii) will use the definitions set forth in this Agreement with no consideration given to any modification of such definitions, (iviii) will be limited to those adjustments, if any, required to be made for the Closing Statement to comply with the provisions of this Agreement and (viv) will make a determination of the Unresolved Items within the range of Buyer’s and Seller’s disagreementvalues established for such Unresolved Items pursuant to Section 1.4.3. Each Party will use commercially reasonable efforts to furnish to the Independent Accounting Firm such work papers and other documents and information pertaining to the Unresolved Items as the Independent Accounting Firm may reasonably request and will be afforded an opportunity to discuss the Unresolved Items with the Independent Accounting Firm at such hearing as the Independent Accounting Firm will request or permit; provided, that (y) each Party will provide the other Party with a copy of all materials provided to, and communications with, the Independent Accounting Firm and (x) no Party (or any of its Affiliates or Representatives) will engage in any ex parte communication with the Independent Accounting Firm at any time with respect to the Unresolved Items. The Independent Accounting Firm may review the books and records of the Company to the extent necessary to obtain an understanding of the positions of Buyer and Sellers. The Independent Accounting Firm will deliver to Buyer and Seller as promptly as practicable, and will be instructed to deliver Sellers no later than thirty (30) days after its engagement, a written report setting forth (a) its determination of the values of the Unresolved Items and (b) the justifications for such calculationdetermination. Such determination of the Independent Accounting Firm will be final, conclusive and binding upon Buyer and Seller Sellers (absent fraud or manifest error) and Buyer will promptly revise the Closing Statement to reflect such determination the Independent Accounting Firm’s calculations for the Unresolved Items upon receipt of such reportreport including each component of the Closing Transaction Expenses and such revised Closing Statement and each component part shall be deemed the Closing Statement for all purposes hereunder. The fees and expenses of the Independent Accounting Firm will be borne pro rata as between Buyer, on the one hand, and SellerSellers, on the other hand, based on upon the proportionate deviation of the respective adjustment amounts adjustments for the Unresolved Items proposed by Buyer and SellerSellers, as set forth in the Closing Statement in the case of Buyer and the Statement Dispute Notice in the case of SellerSellers, from the determination of the final adjustment amounts for the Unresolved Items made by the Independent Accounting Firm. The date on which the Closing Net Asset Value and Final Purchase Price Transaction Expenses are finally determined in accordance with this Section 2.2 1.4 is referred to as the “Determination Date.”

Independent Accounting Firm. If, upon the conclusion of the Resolution Period, or any mutually-agreed upon extension of the Resolution Periodthereof, Buyer Seller and Seller Parent are unable to reach agreement on all of the Disputed Items, they will jointly engage and submit the unresolved Disputed Items (the “Unresolved Items”) to the Independent Accounting Firm for resolution in accordance with the terms of this Section 2.2(e)1.4.5. The Independent Accounting Firm (i) will act as an arbitrator to determine, based solely on presentations by Buyer Seller and Seller Parent and not by independent review, only the Unresolved Items, (ii) will make a determination with respect to the Unresolved Items only and in a manner consistent with the Accounting Principles and this Section 2.2(e)1.4, (iii) will use the definitions set forth in this Agreement herein with no consideration given to any modification or interpretation of such definitions, (iv) will be limited to those adjustments, if any, required to be made for the Closing Statement to comply with the provisions of this Agreement and (v) will make a determination of the Unresolved Items within the range of BuyerSeller’s and SellerParent’s disagreement. Each Party will use commercially reasonable efforts to furnish to the Independent Accounting Firm such work papers and other documents and information pertaining to the Unresolved Items as the Independent Accounting Firm may reasonably request and will be afforded an opportunity to discuss the Unresolved Items with the Independent Accounting Firm at such hearing as the Independent Accounting Firm will request or permit; provided, that (y) each Party will provide the other Party with a copy of all materials provided to, and communications with, the Independent Accounting Firm and (x) no Party (or any of its Affiliates or Representatives) will engage in any ex parte communication with the Independent Accounting Firm at any time with respect to the Unresolved Items. The Independent Accounting Firm will deliver to Buyer Seller and Seller Parent as promptly as practicable, and will be instructed to deliver no later than thirty (30) days after its engagement, a written report setting forth such calculation. Such determination of the Independent Accounting Firm will be final, binding and conclusive upon Seller and binding upon Buyer and Seller Parent (absent fraud or manifest error) and Buyer Parent will promptly revise the Closing Statement to reflect such determination upon receipt of such report. The fees and expenses of the Independent Accounting Firm will be borne pro rata as between BuyerSeller, on the one hand, and Sellerthe Parent, on the other hand, based on the proportionate deviation of the respective adjustment amounts for the Unresolved Items proposed by Buyer Parent and Seller, as set forth in the Closing Statement in the case of Buyer Parent and the Dispute Notice of Disagreement in the case of Seller, from the determination of the final adjustment amounts made by the Independent Accounting Firm. The date on which the Closing Net Asset Value and Final Purchase Price are finally determined in accordance with this Section 2.2 is referred to as the “Determination Date.”

Independent Accounting Firm. If, upon the conclusion of the Resolution Period, or any mutually-agreed upon extension of the Resolution Period, Buyer and Seller the Sellers’ Representative are unable to reach agreement on all of the Disputed Items, they will jointly engage and submit the unresolved Disputed Items (the “Unresolved Items”) to the Independent Accounting Firm for resolution in accordance with the terms of this Section 2.2(e)1.4.5. The Independent Accounting Firm (i) will act as an arbitrator to determine, based solely on presentations by Buyer and Seller the Sellers’ Representative and not by independent review, only the Unresolved Items, (ii) will make a determination with respect to the Unresolved Items only and in a manner consistent with this Section 2.2(e)1.4.5, (iii) will use the definitions set forth in this Agreement with no consideration given to any modification of such definitions, (iv) will be limited to those adjustments, if any, required to be made for the Closing Statement to comply with the provisions of this Agreement and (v) will make a determination of the Unresolved Items within the range of Buyer’s and Sellerthe Sellers’ Representative’s disagreement. Each Party will use commercially reasonable efforts to furnish to the Independent Accounting Firm such work papers and other documents and information pertaining to the Unresolved Items as the Independent Accounting Firm may reasonably request and will be afforded an opportunity to discuss the Unresolved Items with the Independent Accounting Firm at such hearing as the Independent Accounting Firm will request or permit; provided, that (y) each Party will provide the other Party with a copy of all materials provided to, and communications with, the Independent Accounting Firm and (x) no Party (or any of its Affiliates or Representatives) will engage in any ex parte communication with the Independent Accounting Firm at any time with respect to the Unresolved Items. The Independent Accounting Firm will deliver to Buyer and Seller the Sellers’ Representative as promptly as practicable, and will be instructed to deliver no later than thirty (30) days after its engagement, a written report setting forth such calculation. Such determination of the Independent Accounting Firm will be final, conclusive and binding upon Buyer and Seller Sellers (absent fraud or manifest error) and Buyer will promptly revise the Closing Statement to reflect such determination upon receipt of such report. The fees and expenses of the Independent Accounting Firm will be borne pro rata as between Buyer, on the one hand, and SellerSellers, on the other hand, based on the proportionate deviation of the respective adjustment amounts for the Unresolved Items proposed by Buyer and Sellerthe Sellers’ Representative, as set forth in the Closing Statement in the case of Buyer and the Dispute Notice in the case of Sellerthe Sellers’ Representative, from the determination of the final adjustment amounts made by the Independent Accounting Firm. The date on which the Closing Net Asset Value Value, the Closing Cash, the Closing Indebtedness, the Closing Transaction Expenses, and Final Closing Date Purchase Price are finally determined in accordance with this Section 2.2 1.4 is referred to as the “Determination Date.”

Independent Accounting Firm. If, upon the conclusion of the Resolution Period, or any mutually-agreed upon extension of the Resolution Period, If Buyer and Seller Rep are unable to reach agreement on all resolve their disagreement within 30 days after the delivery to Buyer of the Disputed ItemsSeller’s Proposed Calculations, they will jointly engage and then either Seller Rep or Buyer may submit the unresolved Disputed Items matters in dispute to Deloitte (the “Unresolved ItemsIndependent Accounting Firm”) or, if such firm is unable or unwilling to be engaged for such purpose, then the Seller and Buyer will mutually select another independent accounting firm to act as the Independent Accounting Firm. If issues in dispute are submitted to the Independent Accounting Firm for resolution in accordance with the terms of this Section 2.2(e). The Independent Accounting Firm resolution, each Party will (i) will act as an arbitrator to determine, based solely on presentations by Buyer and Seller and not by independent review, only the Unresolved Items, (ii) will make a determination with respect to the Unresolved Items only and in a manner consistent with this Section 2.2(e), (iii) will use the definitions set forth in this Agreement with no consideration given to any modification of such definitions, (iv) will be limited to those adjustments, if any, required to be made for the Closing Statement to comply with the provisions of this Agreement and (v) will make a determination of the Unresolved Items within the range of Buyer’s and Seller’s disagreement. Each Party will use commercially reasonable efforts to furnish to the Independent Accounting Firm such work papers and other documents and information pertaining relating to the Unresolved Items disputed issues as the Independent Accounting Firm may reasonably request and will to the extent available to that Party or his or its accountants, (ii) be afforded an the opportunity to discuss the Unresolved Items with present to the Independent Accounting Firm at such hearing as one position paper relating to the determination within 21 days of the submission of the dispute to the Independent Accounting Firm will request or permit; provided, that (y) each Party will provide the other Party with a copy of all materials provided toFirm, and communications with(iii) promptly respond to the Independent Accounting Firm’s questions regarding the dispute. In resolving any disputed item, the Independent Accounting Firm Firm: (A) shall limit its review to matters specifically set forth in the Seller’s Proposed Calculations that remain disputed, and (xB) no shall not assign a value to any item greater than the largest value for such item claimed by either Party (or any of its Affiliates or Representatives) will engage in any ex parte communication with less than the Independent Accounting Firm at any time with respect to the Unresolved Itemssmallest value for such item claimed by either Party. The Independent Accounting Firm will finally resolve, in accordance with the terms of this Agreement, only the matters in dispute. The Independent Accounting Firm will be instructed to deliver to Buyer and Seller as promptly as practicable, and will be instructed to deliver no later than thirty (30) days after its engagement, a Rep written report setting forth such calculation. Such determination notice of the Independent Accounting Firm’s decision and related calculations within 45 days after submission of the matter to the Independent Accounting Firm. The determination by the Independent Accounting Firm with respect to any matter in dispute (including as to all procedural matters) will be final, binding and conclusive upon the Parties and binding upon Buyer and Seller (absent fraud or manifest error) and Buyer will promptly revise the Closing Statement shall not be subject to reflect such determination upon receipt of such reportappeal by any Party. The fees fees, costs and expenses of the Independent Accounting Firm will be borne pro rata as between equally by Buyer, on the one hand, and SellerSeller and the Shareholders, on the other hand, based on the proportionate deviation of the respective adjustment amounts for the Unresolved Items proposed by Buyer and Seller, as set forth in the Closing Statement in the case of Buyer and the Dispute Notice in the case of Seller, from the determination of the final adjustment amounts made by the Independent Accounting Firm. The date on which the Closing Net Asset Value and Final Purchase Price are finally determined in accordance with this Section 2.2 is referred to as the “Determination Date.”

Independent Accounting Firm. If, upon the conclusion of the Resolution Period, or any mutually-agreed upon extension of thereof, the Resolution Period, Buyer and Seller the Sellers’ Representative are unable to reach agreement on all of the Disputed Items, then they will jointly engage and submit the unresolved Disputed Items (the “Unresolved Items”) to the Independent Accounting Firm for resolution in accordance with the terms of this Section 2.2(e2.4(e). The Independent Accounting Firm (i) will act as an arbitrator to determine, based solely on presentations by the Buyer and Seller the Sellers’ Representative and not by independent review, only the Unresolved Items, (ii) will make a determination with respect to the Unresolved Items only and in a manner consistent with this Section 2.2(e2.4(e), (iii) will use the definitions set forth in this Agreement herein with no consideration given to any modification of such definitions, (iv) will be limited to those adjustments, if any, required to be made for the Closing Statement to comply with the provisions of this Agreement Agreement, and (v) will make a determination of the Unresolved Items within the range of the Buyer’s and Sellerthe Sellers’ Representative’s disagreement. Each Party party will use their commercially reasonable efforts to furnish to the Independent Accounting Firm such work papers and other documents and information pertaining to the Unresolved Items as the Independent Accounting Firm may reasonably request request, and will be afforded an opportunity to discuss the Unresolved Items with the Independent Accounting Firm at such hearing hearings as the Independent Accounting Firm will request or permit; provided, that (yA) each Party party will provide the other Party party with a copy of all materials provided to, and communications with, the Independent Accounting Firm Firm, and (xB) no Party party (or any of its Affiliates or Representatives) will engage in any ex parte communication with the Independent Accounting Firm at any time with respect to the Unresolved Items. The Independent Accounting Firm will deliver to the Buyer and Seller the Sellers’ Representative, as promptly as practicable, and will be instructed to deliver no later than thirty (30) days after its engagement, a written report setting forth such calculation. Such determination of the Independent Accounting Firm will be final, binding and conclusive and binding upon the Buyer and Seller the Sellers (absent fraud Fraud or manifest error) ), and the Buyer will promptly revise the Closing Statement to reflect such determination determination, upon its receipt of such report. The fees and expenses of the Independent Accounting Firm will be borne pro rata as between the Buyer, on the one hand, and Sellerthe Sellers, on the other hand, based on the proportionate deviation of the respective adjustment amounts for the Unresolved Items proposed by the Buyer and Sellerthe Sellers’ Representative, as set forth in the Closing Statement in the case of Buyer the Buyer, and the Dispute Notice in the case of Sellerthe Sellers’ Representative, from the determination of the final adjustment amounts Adjustment Amount made by the Independent Accounting Firm. The date on which the Closing Net Asset Value Working Capital, the Closing Indebtedness, the Closing Transaction Expenses, and Final Purchase Price the Closing Date Cash Payment are finally determined in accordance with this Section 2.2 2.4 is referred to as the “Determination Date.”

Independent Accounting Firm. If, upon the conclusion of the Resolution Period, or any mutually-agreed upon extension of the Resolution Periodthereof, Buyer and Seller the Sellers’ Representative are unable to reach agreement on all of the Disputed Items, they will jointly engage and submit the unresolved Disputed Items (the “Unresolved Items”) to the Independent Accounting Firm for resolution in accordance with the terms of this Section 2.2(e)1.4.5. The Independent Accounting Firm (i) will act as an arbitrator to determine, based solely on presentations by Buyer and Seller the Sellers’ Representative and not by independent review, only the Unresolved Items, (ii) will make a determination with respect to the Unresolved Items only and in a manner consistent with this Section 2.2(e)1.4.5, (iii) will use the definitions set forth in this Agreement herein with no consideration given to any modification of such definitions, (iv) will be limited to those adjustments, if any, required to be made for the Closing Statement to comply with the provisions of this Agreement and (v) will make a determination of the Unresolved Items within the range of Buyer’s and Sellerthe Sellers’ Representative’s disagreement. Each Party will use commercially reasonable efforts to furnish to the Independent Accounting Firm such work papers and other documents and information pertaining to the Unresolved Items as the Independent Accounting Firm may reasonably request and will be afforded an opportunity to discuss the Unresolved Items with the Independent Accounting Firm at such hearing as the Independent Accounting Firm will request or permit; provided, that (y) each Party will provide the other Party with a copy of all materials provided to, and communications with, the Independent Accounting Firm and (xz) no Party (or any of its Affiliates or Representatives) will engage in any ex parte communication with the Independent Accounting Firm at any time with respect to the Unresolved Items. The Independent Accounting Firm will deliver to Buyer and Seller the Sellers’ Representative as promptly as practicable, and will be instructed to deliver no later than thirty (30) days after its engagement, a written report setting forth such calculation. Such determination of the Independent Accounting Firm will be final, binding and conclusive and binding upon Buyer and Seller Sellers (absent fraud or manifest error) and Buyer will promptly revise the Closing Statement to reflect such determination upon receipt of such report. The fees and expenses of the Independent Accounting Firm will be borne pro rata as between Buyer, on the one hand, and SellerSellers, on the other hand, based on the proportionate deviation of the respective adjustment amounts for the Unresolved Items proposed by Buyer and Sellerthe Sellers’ Representative, as set forth in the Closing Statement in the case of Buyer and the Dispute Notice in the case of Sellerthe Sellers’ Representative, from the determination of the final adjustment amounts made by the Independent Accounting Firm. The date on which the Closing Net Asset Value Working Capital, the Closing Cash, the Closing Indebtedness, the Closing Transaction Expenses, and Final Closing Date Purchase Price are finally determined in accordance with this Section 2.2 1.4 is referred to as the “Determination Date.”

Independent Accounting Firm. If, upon the conclusion Each of the Resolution Periodparties shall furnish, or any mutually-agreed upon extension of the Resolution Periodat its own expense, Buyer and Seller are unable to reach agreement on all of the Disputed Items, they will jointly engage and submit the unresolved Disputed Items (the “Unresolved Items”) to the Independent Accounting Firm for resolution in accordance and the other parties hereto with such documents and other written information as the terms of this Section 2.2(e). The Independent Accounting Firm (i) will act as an arbitrator to determine, based solely on presentations by Buyer and Seller and not by independent review, only may request in connection with resolving the Unresolved Items, (ii) will make a determination with respect to the Unresolved Items only and in a manner consistent with this Section 2.2(e), (iii) will use the definitions set forth in this Agreement with no consideration given to any modification of such definitions, (iv) will be limited to those adjustments, if any, required to be made for the Closing Statement to comply with the provisions of this Agreement and (v) will make a determination of the Unresolved Items within the range of Buyer’s and Seller’s disagreementdisputed items. Each Party will use commercially reasonable efforts to party may also furnish to the Independent Accounting Firm such work papers other written information and other documents and information pertaining to the Unresolved Items as the Independent Accounting Firm may reasonably request and will be afforded an opportunity to discuss the Unresolved Items with the Independent Accounting Firm at such hearing as the Independent Accounting Firm will request or permitparty deems relevant; provided, that (y) each Party will provide copies of all such documents and materials shall be concurrently delivered to the other Party with a copy of all parties to the proceedings in the same form and manner as such materials provided to, and communications with, are delivered to the Independent Accounting Firm and (x) no Party (or any of its Affiliates or Representatives) will engage in any ex parte communication with the Independent Accounting Firm at any time with respect to the Unresolved ItemsFirm. The Independent Accounting Firm will deliver may, at their discretion, conduct one or more conferences with respect to Buyer the dispute between Purchaser and Seller, at which conference each party shall have the right to present such additional documents, materials and other information and to be accompanied or represented by such advisors, counsel and accountants as each party shall choose in its sole discretion. Purchaser and Seller shall instruct the Independent Accounting Firm to render their written decision with respect to all matters submitted to them by Purchaser and Seller as promptly as practicable, and will be instructed to deliver no later than thirty (30) days after its engagement, a written report setting forth such calculation. Such determination of the The Independent Accounting Firm will shall determine the proportion of their fees and expenses to be finalpaid by Purchaser and Seller, conclusive and binding upon Buyer respectively, in accordance with the relative merits of the parties’ positions. Purchaser and Seller (absent fraud or manifest error) and Buyer will shall promptly revise pay their respective shares of the Closing Statement to reflect such determination upon receipt of such report. The fees and expenses of the Independent Accounting Firm. The determination of the Independent Accounting Firm will as to all disputed items shall be borne pro rata as between Buyer, on the one hand, final and binding upon Purchaser and Seller, on the other hand, based on the proportionate deviation of the respective adjustment amounts for the Unresolved Items proposed by Buyer and Seller, as set forth in the Closing Statement except in the case of Buyer and manifest error or actual fraud. The disputed amount shall be payable by the Dispute Notice in the case of Seller, from the party owing such amount within five (5) Business Days following resolution or determination of the final adjustment amounts made by the Independent Accounting Firmdispute. The date on which failure of Seller to provide a Notice of Dispute within the thirty (30) calendar day time period referred to in Section 3.02(c) shall be deemed an acceptance by Seller of the Closing Net Asset Value and Final Purchase Price are finally determined in accordance with this Section 2.2 is referred to as the “Determination DateStatement.”

Independent Accounting Firm. If, upon the conclusion of the Resolution Period, or any mutually-agreed upon extension of the Resolution Periodthereof, Buyer and Seller are unable to reach agreement on all of the Disputed Items, they will jointly engage and submit the unresolved Disputed Items (the “Unresolved Items”) to the Independent Accounting Firm for resolution in accordance with the terms of this Section 2.2(e1.4(e). The Independent Accounting Firm (i) will act as an arbitrator to determine, based solely on presentations by Buyer and Seller and not by independent review, only the Unresolved Items, (ii) will make a determination with respect to the Unresolved Items only and in a manner consistent with this Section 2.2(e1.4(e), (iii) will use the definitions set forth in this Agreement herein with no consideration given to any modification of such definitions, (iv) will be limited to those adjustments, if any, required to be made for the Closing Statement to comply with the provisions of this Agreement and (v) will make a determination of the Unresolved Items within in accordance with the Accounting Principles and the applicable defined terms in this Agreement as well as calculated consistently with the example calculation set forth on Exhibit C and in no event will the Independent Accounting Firm’s determination of the Unresolved Items be for an amount that is outside the range of Buyer’s and Seller’s disagreement. Each Party will use commercially reasonable efforts to furnish to the Independent Accounting Firm such work papers and other documents and information pertaining to the Unresolved Items as the Independent Accounting Firm may reasonably request and will be afforded an opportunity to discuss the Unresolved Items with the Independent Accounting Firm at such hearing as the Independent Accounting Firm will request or permit; provided, that that, (y) each Party will provide the other Party Parties with a copy of all materials provided to, and communications with, the Independent Accounting Firm and (xz) no Party (or any of its Affiliates or Representatives) will engage in any ex parte communication with the Independent Accounting Firm at any time with respect to the Unresolved Items. The Independent Accounting Firm will deliver to Buyer and Seller as promptly as practicable, practicable and will be instructed to deliver no later than thirty (30) days after its engagement, a written report setting forth such calculation. Such determination of the Independent Accounting Firm will be final, binding and conclusive and binding upon Buyer and Seller the Parties (absent fraud Actual Fraud or manifest error) and Buyer will promptly revise the Closing Statement to reflect such determination upon receipt of such report. The fees and expenses of the Independent Accounting Firm will be borne pro rata as between Buyer, on the one hand, by Bxxxx and Seller, on the other hand, Seller proportionately based on the proportionate deviation relative success of the respective adjustment amounts for each of them in resolving the Unresolved Items proposed by Buyer and SellerItems, as set forth in the Closing Statement in the case of Buyer and the Dispute Notice in the case of Seller, from the determination of the final adjustment amounts made determined by the Independent Accounting FirmFirm (i.e., so that the more successful of the two Parties bears a lesser proportion of such fees and expenses). The date on which the Closing Net Asset Value Working Capital, the Closing Cash, the Closing Indebtedness, the Closing Transaction Expenses, and Final Closing Date Purchase Price are finally determined in accordance with this Section 2.2 1.4 is referred to as the “Determination Date.”