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 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
10
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 is less
than the Initial Working Capital by more than $7,500, then the amount of such
deficiency (the "Working Capital Deficiency") shall be set off against the
Royalty Payments as follows:
(i)
If the sum (the "Working Capital Adjustment") of