BE FINAL, BINDING AND CONCLUSIVE ON ALL PARTIES.
(D)
RESOLUTION OF PROTEST. UPON RECEIPT OF THE PROTEST NOTICE, THE
BUYER AND THE SELLER REPRESENTATIVE SHALL USE GOOD FAITH EFFORTS TO RESOLVE ANY
DISPUTE INVOLVING THE DETERMINATION OF THE NET WORKING CAPITAL.
IF THE BUYER
AND THE SELLER REPRESENTATIVE ARE UNABLE TO RESOLVE ANY DISAGREEMENT AS TO THE
NET WORKING CAPITAL STATEMENT WITHIN THIRTY (30) DAYS FOLLOWING THE BUYER'S
RECEIPT OF THE PROTEST NOTICE, THEN THE DISPUTE WILL BE PROMPTLY REFERRED TO AN
INDEPENDENT CERTIFIED PUBLIC ACCOUNTING FIRM OF NATIONAL STANDING WHICH HAS NOT
REGULARLY PROVIDED SERVICES TO THE BUYER, SVOCO, PRAIRIE, THE COMPANY OR ANY OF
ITS SUBSIDIARIES IN THE LAST THREE (3) YEARS (THE "ACCOUNTANTS") FOR FINAL
ARBITRATION WITHIN FORTY-FIVE (45) DAYS AFTER THE MATTER IS SUBMITTED TO THE
ACCOUNTANTS.
THE BUYER AND THE SELLERS AGREE THAT ARBITRATION SHALL TAKE PLACE
IN PORTLAND, OREGON, UNLESS AGREED OTHERWISE AT THE TIME OF ARBITRATION BY THE
BUYER AND THE SELLER REPRESENTATIVE. THE ACCOUNTANTS SHALL THEN DILIGENTLY
CONDUCT THE ARBITRATION PROCEEDING IN ACCORDANCE WITH RULES AND PROCEDURES
MUTUALLY AGREED UPON BY THE BUYER AND THE SELLER REPRESENTATIVE AND, IF THE
BUYER AND THE SELLER REPRESENTATIVE ARE UNABLE TO MUTUALLY AGREE UPON SUCH RULES
AND PROCEDURES, SUCH RULES AND PROCEDURES AS THE ACCOUNTANTS MAY DETERMINE.
THE
DECISION OF THE ACCOUNTANTS SHALL BE FINAL AND CONCLUSIVE UPON THE BUYER AND THE
SELLERS, AND A JUDGMENT UPON THE AWARD MAY BE ENTERED IN ANY COURT HAVING
JURISDICTION.
THE ACCOUNTANTS SHALL ACT AS AN ARBITRATOR TO DETERMINE, BASED
SOLELY ON PRESENTATIONS BY THE BUYER AND THE SELLER REPRESENTATIVE, AND NOT BY
INDEPENDENT REVIEW, ONLY THOSE AMOUNTS STILL IN DISPUTE.
THE BUYER AND THE
SELLERS AGREE TO EXECUTE, IF REQUESTED BY THE ACCOUNTANTS, A REASONABLE
ENGAGEMENT LETTER.
THE FEES AND EXPENSES OF THE ACCOUNTANTS SHALL BE DIVIDED
EQUALLY BETWEEN THE BUYER, ON THE ONE HAND, AND THE SELLERS, ON THE OTHER HAND.
THE TERM "FINAL NET WORKING CAPITAL STATEMENT," AS USED IN THIS AGREEMENT, SHALL
MEAN THE DEFINITIVE NET WORKING CAPITAL STATEMENT ACCEPTED BY THE SELLER
REPRESENTATIVE OR AGREED TO BY THE SELLER REPRESENTATIVE AND THE BUYER IN
ACCORDANCE WITH SECTION 2.5(C) OR THE DEFINITIVE NET WORKING CAPITAL STATEMENT
RESULTING FROM THE DETERMINATIONS MADE BY THE ACCOUNTANTS IN ACCORDANCE WITH
THIS SECTION 2.5(D).
15
(E)
PAYMENT. WITHIN FIVE (5) BUSINESS DAYS OF THE DETERMINATION OF THE
FINAL NET WORKING CAPITAL STATEMENT:
(I)
IF THE ESTIMATED CLOSING NET WORKING CAPITAL IS GREATER THAN THE
NET WORKING CAPITAL SET FORTH ON THE FINAL NET WORKING CAPITAL STATEMENT (SUCH
DIFFERENCE BEING A "SHORTFALL"), THEN (A) THE AMOUNT OF SUCH SHORTFALL UP TO AND
INCLUDING $500,000 SHALL BE RELEASED FROM THE ESCROW ACCOUNT AND PAID TO THE
BUYER, BY WIRE TRANSFER OF IMMEDIATELY AVAILABLE FUNDS TO AN ACCOUNT DESIGNATED
BY THE BUYER (AND THE SELLER REPRESENTATIVE AGREES TO EXECUTE JOINT
INSTRUCTIONS, AND TAKE ALL OTHER ACTIONS, NECESSARY TO CAUSE SUCH RELEASE), AND
(B) THE AMOUNT OF SUCH SHORTFALL IN EXCESS OF $500,000, IF ANY, SHALL BE PAID
IMMEDIATELY BY THE