NATURE AND BASIS OF ALL DISPUTED ITEMS, BUYER SHALL BE DEEMED TO
HAVE ACCEPTED AND AGREED TO THE CALCULATION OF THE CLOSING WORKING CAPITAL.
IF
BUYER TIMELY NOTIFIES SELLER OF ITS OBJECTION TO THE CALCULATION OF THE CLOSING
WORKING CAPITAL AS DESCRIBED ABOVE, SELLER AND BUYER SHALL, WITHIN THIRTY (30)
DAYS (OR SUCH LONGER PERIOD AS THE PARTIES MAY AGREE IN WRITING) FOLLOWING SUCH
NOTICE (THE "RESOLUTION PERIOD"), ATTEMPT TO RESOLVE THEIR DIFFERENCES AND ANY
RESOLUTION BY THEM AS TO ANY DISPUTED AMOUNTS SHALL BE FINAL, BINDING AND
CONCLUSIVE.
(C)
IF, AT THE CONCLUSION OF THE RESOLUTION PERIOD, THERE ARE ANY
AMOUNTS REMAINING IN DISPUTE, THEN SUCH AMOUNTS REMAINING IN DISPUTE SHALL BE
SUBMITTED TO A FIRM OF NATIONALLY RECOGNIZED INDEPENDENT CERTIFIED PUBLIC
ACCOUNTANTS (THE "NEUTRAL AUDITORS") SELECTED
10
BY SELLER AND BUYER WITHIN TEN (10) DAYS AFTER THE EXPIRATION OF THE RESOLUTION
PERIOD.
IF SELLER AND BUYER ARE UNABLE TO AGREE ON THE NEUTRAL AUDITORS, THEN
EACH OF SELLER AND BUYER SHALL HAVE THE RIGHT TO REQUEST THE OFFICE OF THE
AMERICAN ARBITRATION ASSOCIATION TO APPOINT THE NEUTRAL AUDITORS, WHICH NEUTRAL
AUDITORS SHALL NOT HAVE HAD A MATERIAL RELATIONSHIP WITH SELLER, BUYER OR ANY OF
THEIR RESPECTIVE AFFILIATES WITHIN THE PAST TWO YEARS.
EACH OF SELLER AND BUYER
AGREE TO EXECUTE, IF REQUESTED BY THE NEUTRAL AUDITORS, A REASONABLE ENGAGEMENT
LETTER, INCLUDING CUSTOMARY INDEMNITIES.
ALL FEES AND EXPENSES RELATING TO THE
WORK, IF ANY, TO BE PERFORMED BY THE NEUTRAL AUDITORS SHALL BE BORNE EQUALLY
BETWEEN SELLER AND BUYER. THE NEUTRAL AUDITORS SHALL ACT AS AN ARBITRATOR TO
DETERMINE, BASED SOLELY ON THE PROVISIONS OF THIS SECTION 3.2 AND THE
PRESENTATIONS BY SELLER AND BUYER ONLY THOSE ISSUES STILL IN DISPUTE.
THE
NEUTRAL AUDITORS' DETERMINATION SHALL BE MADE WITHIN THIRTY (30) DAYS OF THEIR
SELECTION, SHALL BE SET FORTH IN A WRITTEN STATEMENT DELIVERED TO SELLER AND
BUYER AND SHALL BE DEEMED A FINAL, BINDING AND CONCLUSIVE ARBITRATION AWARD.
A
JUDGMENT OF A COURT OF COMPETENT JURISDICTION MAY BE ENTERED UPON THE NEUTRAL
AUDITORS' DETERMINATION.
THE TERM "FINAL CLOSING WORKING CAPITAL" SHALL MEAN
THE DEFINITIVE CLOSING WORKING CAPITAL AGREED TO (OR DEEMED TO BE AGREED TO) BY
BUYER AND SELLER IN ACCORDANCE WITH SECTION 3.2(B) HEREOF OR RESULTING FROM THE
DETERMINATIONS MADE BY THE NEUTRAL AUDITORS IN ACCORDANCE WITH THIS SECTION
3.2(C) (IN ADDITION TO THOSE ITEMS THERETOFORE AGREED TO BY SELLER AND BUYER).
(D)
SELLER, PARENT AND FRANCHISOR EXPRESSLY AGREE THAT, SUBJECT TO
ADJUSTMENT AS PROVIDED IN THE LAST SENTENCE OF THIS SECTION 3.2(D), BUYER AND
CLEVELAND BUYER SHALL BE ENTITLED TO A CREDIT IN THE AGGREGATE AMOUNT OF
$126,120 (THE "ROYALTY CREDIT") AGAINST ANY ROYALTY OR OTHER PAYMENTS ("ROYALTY
PAYMENTS") COMING DUE BY BUYER UNDER THE FRANCHISE AGREEMENT OR CLEVELAND BUYER
UNDER ITS FRANCHISE AGREEMENT.
THE ROYALTY CREDIT SHALL BE APPLIED AGAINST
ROYALTY PAYMENTS OF BUYER AND CLEVELAND BUYER FIRST COMING DUE AFTER THE
EFFECTIVE DATE AT THE AGGREGATE RATE OF $10,000 PER MONTH.
In addition to the Royalty Credit, if the Final Closing Working Capital