THE AMERICAN ARBITRATION ASSOCIATION, REVIEW ONLY THOSE ITEMS AND AMOUNTS
SPECIFICALLY SET FORTH AND OBJECTED TO IN THE DISPUTE NOTICE AND RESOLVE THE
DISPUTE WITH RESPECT TO EACH SUCH SPECIFIC ITEM AND AMOUNT IN ACCORDANCE WITH
THE ACCOUNTING PRINCIPLES, BUT WITHIN THE POSITIONS TAKEN BY THE CLOSING BALANCE
SHEET AND/OR CLOSING WORKING CAPITAL STATEMENT AND THE DISPUTE NOTICE.
THE
REFEREE SHALL ALLOCATE ITS COSTS AND EXPENSES, AND THE REASONABLE LEGAL AND
ACCOUNTING COSTS AND EXPENSES OF THE BUYER AND THE SELLERS' REPRESENTATIVE,
BETWEEN THE BUYER AND THE SELLERS BASED UPON THE PERCENTAGE OF THE CONTESTED
AMOUNT SUBMITTED TO THE REFEREE THAT IS ULTIMATELY AWARDED TO EACH OF THE BUYER
AND THE SELLERS SUCH THAT EACH OF THE BUYER AND THE SELLERS BEAR A PERCENTAGE OF
SUCH COSTS AND EXPENSES EQUAL TO THE PERCENTAGE OF THE CONTESTED AMOUNT AWARDED
TO THE OTHER.
FOR EXAMPLE, IF THE SELLERS CLAIM WORKING CAPITAL IS $1,000
GREATER THAN THE AMOUNT DETERMINED BY THE BUYER, AND THE BUYER CONTESTS ONLY
$500 OF THE AMOUNT CLAIMED BY THE SELLERS, AND IF THE REFEREE ULTIMATELY
RESOLVES THE DISPUTE BY AWARDING THE SELLERS $300 OF THE $500 CONTESTED, THEN
THE APPLICABLE COSTS AND EXPENSES SHALL BE ALLOCATED 60% (I.E. 300/500) TO THE
BUYER AND 40% (I.E. 200/500) TO THE SELLERS.
THE DECISION OF THE REFEREE WITH
RESPECT TO THE ITEMS OF THE CLOSING BALANCE SHEET AND THE CLOSING WORKING
CAPITAL STATEMENT SUBMITTED TO IT
4
WILL BE FINAL, CONCLUSIVE AND BINDING ON THE PARTIES.
EACH OF THE PARTIES TO
THIS AGREEMENT AGREES TO USE ITS COMMERCIALLY REASONABLE EFFORTS TO COOPERATE
WITH THE REFEREE AND TO CAUSE THE REFEREE TO RESOLVE ANY DISPUTE NO LATER THAN
THIRTY BUSINESS DAYS AFTER SELECTION OF THE REFEREE.
2.5.5
PURCHASE PRICE ADJUSTMENT.
PROMPTLY, AND IN ANY EVENT NO LATER THAN THE FIFTH BUSINESS DAY AFTER FINAL
DETERMINATION OF THE WORKING CAPITAL IN ACCORDANCE WITH SECTION 2.5, ALL
PAYMENTS UNDER THIS SECTION 2.5.5 SHALL BE MADE BY WIRE TRANSFER IN IMMEDIATELY
AVAILABLE FUNDS, PROVIDED THAT, IF A DISPUTE NOTICE IS DELIVERED PURSUANT TO
SECTION 2.5.3, ANY PORTION OF THE PURCHASE PRICE ADJUSTMENT WHICH IS NOT IN
DISPUTE SHALL BE PAID PROMPTLY AFTER THE DELIVERY OF SUCH DISPUTE NOTICE, AND IN
ANY EVENT NO LATER THAN THE FIFTH BUSINESS DAY AFTER SUCH DELIVERY.
(A)
IF THE FINAL WORKING CAPITAL EXCEEDS THE ESTIMATED
WORKING CAPITAL, THEN THE BUYER WILL PAY AN AMOUNT EQUAL TO SUCH EXCESS TO THE
SELLERS.
(B)
IF THE FINAL WORKING CAPITAL IS LESS THAN THE
ESTIMATED WORKING CAPITAL, THEN THE SELLERS SHALL PAY TO THE BUYER AN AMOUNT
EQUAL TO SUCH SHORTFALL.
2.5.6
RIGHT TO SET-OFF AGAINST THE NOTE.
IN THE EVENT THAT THE SELLERS DO NOT PAY TO THE BUYER ANY AMOUNT REQUIRED BY
SECTION 2.5.5 WITHIN THE REQUIRED TIME SPECIFIED THEREIN, THE BUYER MAY ELECT,
IN ITS SOLE DISCRETION, IN LIEU OF RECEIVING SUCH AMOUNT IN CASH, TO REDUCE ITS
REMAINING PAYMENT OBLIGATIONS UNDER ONE OR MORE OF THE SUBORDINATED NOTES BY AN
AMOUNT EQUAL IN THE AGGREGATE FOR ALL