Common use of Cash Payment Determination Clause in Contracts

Cash Payment Determination. Within ninety (90) days after the Closing Date, the Company shall prepare and deliver to the Investor a statement setting forth the Company’s calculation of the Debt Amount, the Working Capital and Working Capital Deficit, if any, and the Cash Shortfall, if any, in each case as of the Closing Date and, based on such calculations, the Cash Payment (the “Closing Statement”). If the Investor has any objections to the Closing Statement prepared by the Company based on the contention that such Closing Statement was not prepared in accordance with the terms of the Agreement, then the Investor will deliver a detailed written statement (the “Objections Statement”) describing (a) which items on the Closing Statement have not been prepared in accordance with this Agreement, (b) the basis for the Investor’s disagreement with the calculation of such items and (c) the Investor’s proposed dollar amount for each item in dispute, to the Company within thirty (30) days after delivery of the Closing Statement. If the Investor fails to deliver an Objections Statement within such thirty (30) day period, then the Closing Statement shall become final and binding on all Parties. The Investor and the Company shall be deemed to have agreed with all amounts and items contained or reflected in the Closing Statement to the extent such amounts or items are not disputed in the Objections Statement. If the Investor delivers an Objections Statement within such thirty (30) day period, then the Investor and the Company will use commercially reasonable efforts to resolve any such disputes, but if a final resolution is not obtained within thirty (30) days after the Investor has submitted any Objections Statements, any remaining matters which are in dispute will be resolved by BDO USA, LLP (the “Accountants”). The Accountants will prepare and deliver a written report to the Investor and the Company and will submit a proposed resolution of such unresolved disputes promptly, but in any event within thirty (30) days after the dispute is submitted to the Accountants. The Accountants’ determination of such unresolved disputes shall be final and binding upon all Parties and not subject to review by a court or other tribunal; provided, however, that no such determination shall be any more favorable to the Company than is set forth in the Closing Statement or any more favorable to the Investor than is proposed in the Objections Statement. The costs, expenses and fees of the Accountants shall be borne by the Party whose calculation of the Cash Payment has the greatest difference from the Final Cash Payment as determined by the Accountants under this Section 1.5; otherwise, such costs, fees and expenses shall be borne equally by the Investor, on the one hand, and the Company, on the other hand. The final Closing Statement, however determined pursuant to this Section 1.5, will produce the Working Capital Deficit, if any, the Cash Shortfall, if any, and the Debt Amount to be used to determine the final Cash Payment (the “Final Cash Payment”).

Cash Payment Determination. Within ninety sixty (9060) days after the Closing Date, the Company Buyer may, but shall not be required to, prepare and deliver to the Investor Seller Representative (a) a statement setting forth the CompanyBuyer’s calculation of the Debt AmountWorking Capital as of the Closing Date, the Working Capital and Working Capital Deficit, if any, and Debt Amount, Transaction Expenses Balance, the Cash ShortfallRepresentative Expense Fund Amount, if any, in each case as of the Closing Date and, based on such calculations, and the Cash Payment (the “Closing Statement”), and (b) all records and work papers reasonably necessary, in the determination of Buyer, to compute and verify the information set forth in the Closing Statement to the extent such records and work papers differ from the ones previously delivered to Buyer. If the Investor Seller Representative, on behalf of Sellers, has any objections to the Closing Statement prepared by the Company based on the contention that such Closing Statement was not prepared in accordance with the terms of the AgreementBuyer, then the Investor Seller Representative will deliver a detailed written statement (the “Objections Statement”) describing (a) which items on the Closing Statement have not been prepared in accordance with this Agreement, (b) the basis for the Investor’s Sellers’ disagreement with the calculation of such items items, and (c) the Investor’s Sellers’ proposed dollar amount for each item in dispute, to the Company Buyer within thirty (30) days after delivery of the Closing Statement. If the Investor Seller Representative fails to deliver an Objections Statement within such thirty (30) day period, then the Closing Statement shall become final and binding on all Parties. The Investor and the Company Sellers shall be deemed to have agreed with all amounts and items contained or reflected in the Closing Statement to the extent such amounts or items are not disputed in the Objections Statement. If the Investor Seller Representative delivers an Objections Statement within such thirty (30) day period, then the Investor Sellers and the Company Buyer will use commercially reasonable efforts to resolve any such disputes, but if a final resolution is not obtained within thirty (30) days after the Investor Seller Representative has submitted any Objections Statements, any remaining matters which are in dispute will be resolved by BDO USA, RSM US LLP (the “Accountants”). The Accountants will prepare and deliver a written report to the Investor Buyer and the Company Seller Representative and will submit a proposed resolution of such unresolved disputes promptly, but in any event within thirty (30) days after the dispute is submitted to the Accountants. The Accountants’ determination of such unresolved disputes shall will be final and binding upon all Parties and not subject to review by a court or other tribunalParties; provided, however, that no such determination shall be any more favorable to the Company Buyer than is set forth in the Closing Statement or any more favorable to the Investor Sellers than is proposed in the Objections Statement. The costs, expenses and fees of the Accountants shall be borne by the Party whose calculation of the Cash Payment has the greatest difference from the Final Cash Payment as determined by the Accountants under this Section 1.5; otherwise, such costs, fees and expenses shall be borne equally by the Investor, on the one hand, and the Company, on the other hand. The final Closing Statement, however determined pursuant to this Section 1.5, will produce the Working Capital Deficit, if any, the Cash Shortfall, if any, and the Debt Amount to be used to determine the final Cash Payment (the “Final Cash Payment”).Objections

Cash Payment Determination. Within ninety (90) days after the Closing Date, the Company Buyer shall prepare and deliver to the Investor Representative (a) a statement setting forth the CompanyBuyer’s calculation of the Cash Amount, Debt Amount, the Designated Payables Amount and Transaction Expenses Amount, and Working Capital and Capital, Working Capital Deficit, if any, and the Cash ShortfallWorking Capital Surplus, if any, in each case as of the Closing Date and, and based on such calculations, the Cash Payment (the “Closing Statement”), and (b) all records and work papers reasonably necessary to compute and verify the information set forth in the Closing Statement. If the Investor Representative has any objections to the Closing Statement prepared by the Company based on the contention that such Closing Statement was not prepared in accordance with the terms of the AgreementBuyer, then the Investor Representative will deliver a reasonably detailed written statement (the “Objections Statement”) describing (a) which items on the Closing Statement have not been prepared in accordance with this Agreement, (b) the basis for the InvestorRepresentative’s disagreement with the calculation of such items and (c) the InvestorRepresentative’s proposed dollar amount for each item in dispute, to the Company Buyer within thirty (30) days after delivery of the Closing Statement. If the Investor Representative fails to deliver an Objections Statement within such thirty (30) day period, then the Closing Statement shall become final and binding on all Parties. The Investor and the Company Representative shall be deemed to have agreed with all amounts and items contained or reflected in the Closing Statement to the extent such amounts or items are not disputed in the Objections Statement. If the Investor Representative delivers an Objections Statement within such thirty (30) day period, then the Investor Representative and the Company Buyer will use commercially reasonable efforts negotiate in good faith to resolve any such disputes, but if a final resolution is not obtained within thirty (30) days after the Investor Representative has submitted any Objections Statements, any remaining matters which are in dispute will be resolved by BDO USA, LLP the Denver office of Deloitte Touche Tohmatsu Limited (the “Accountants”). The Accountants will prepare and deliver a written report to the Investor Buyer and the Company Representative and will submit a proposed resolution of such unresolved disputes promptly, but in any event within thirty (30) days after the dispute is submitted to the Accountants. The Accountants’ determination of such unresolved disputes shall will be final and binding upon all Parties and not subject to review by a court or other tribunal; provided, however, that no such determination shall be any more favorable to the Company Buyer than is set forth in the Closing Statement or any more favorable to the Investor Representative than is proposed in the Objections Statement. The costs, expenses and fees of the Accountants shall be borne by either the Party whose Equityholders, if the Representative’s calculation of the Cash Payment has the greatest difference from the Final final Cash Payment as determined by the Accountants under this Section 1.51.11 on the one hand, or Buyer, if Buyer’s calculation of the Cash Payment has the greatest difference from the final Cash Payment as determined by the Accountants under this Section 1.11; otherwise, such costs, fees and expenses of the Accountants shall be borne equally by the InvestorBuyer, on the one hand, and the CompanyRepresentative (on behalf of the Equityholders), on the other hand. The final Closing Statement, however determined pursuant to this Section 1.51.11, will produce the Working Capital Deficit, if any, the Cash ShortfallWorking Capital Surplus, if any, the Cash Amount, the Debt Amount, the Designated Payables Amount and the Debt Transaction Expenses Amount to be used to determine the final Cash Payment (the “Final Cash Payment”). CERTAIN IDENTIFIED INFORMATION HAS BEEN EXCLUDED FROM THE EXHIBIT BECAUSE IT IS BOTH (I) NOT MATERIAL AND (II) WOULD BE COMPETITIVELY HARMFUL IF PUBLICLY DISCLOSED, AND THE EXCLUDED TERMS HAVE BEEN MARKED AT THE APPROPRIATE PLACE WITH THREE ASTERISKS [***].

Cash Payment Determination. Within ninety sixty (9060) days after the Closing Date, the Company Buyer may, but shall not be required to, prepare and deliver to the Investor Seller Representative (a) a statement setting forth the CompanyBuyer’s calculation of the Debt AmountWorking Capital as of the Closing Date, the Working Capital and Working Capital Deficit, if any, and Debt Amount, Transaction Expenses Balance, the Cash ShortfallRepresentative Expense Fund Amount, if any, in each case as of the Closing Date and, based on such calculations, and the Cash Payment (the “Closing Statement”), and (b) all records and work papers reasonably necessary, in the determination of Buyer, to compute and verify the information set forth in the Closing Statement to the extent such records and work papers differ from the ones previously delivered to Buyer. If the Investor Seller Representative, on behalf of Sellers, has any objections to the Closing Statement prepared by the Company based on the contention that such Closing Statement was not prepared in accordance with the terms of the AgreementBuyer, then the Investor Seller Representative will deliver a detailed written statement (the “Objections Statement”) describing (a) which items on the Closing Statement have not been prepared in accordance with this Agreement, (b) the basis for the Investor’s Sellers’ disagreement with the calculation of such items items, and (c) the Investor’s Sellers’ proposed dollar amount for each item in dispute, to the Company Buyer within thirty (30) days after delivery of the Closing Statement. If the Investor Seller Representative fails to deliver an Objections Statement within such thirty (30) day period, then the Closing Statement shall become final and binding on all Parties. The Investor and the Company Sellers shall be deemed to have agreed with all amounts and items contained or reflected in the Closing Statement to the extent such amounts or items are not disputed in the Objections Statement. If the Investor Seller Representative delivers an Objections Statement within such thirty (30) day period, then the Investor Sellers and the Company Buyer will use commercially reasonable efforts to resolve any such disputes, but if a final resolution is not obtained within thirty (30) days after the Investor Seller Representative has submitted any Objections Statements, any remaining matters which are in dispute will be resolved by BDO USA, RSM US LLP (the “Accountants”). The Accountants will prepare and deliver a written report to the Investor Buyer and the Company Seller Representative and will submit a proposed resolution of such unresolved disputes promptly, but in any event within thirty (30) days after the dispute is submitted to the Accountants. The Accountants’ determination of such unresolved disputes shall will be final and binding upon all Parties and not subject to review by a court or other tribunalParties; provided, however, that no such determination shall be any more favorable to the Company Buyer than is set forth in the Closing Statement or any more favorable to the Investor Sellers than is proposed in the Objections Statement. The costs, expenses and fees of the Accountants shall be borne by the Party whose calculation of the Cash Payment has the greatest difference from the Final final Cash Payment as determined by the Accountants under this Section 1.5; otherwise, such costs, fees and expenses shall be borne equally by the InvestorBuyer, on the one hand, and the CompanySellers, pursuant to their Pro Rata Shares, on the other hand. The final Closing Statement, however determined pursuant to this Section 1.5, will produce the Working Capital Deficit, if any, the Cash Shortfall, if anyDebt Amount, and the Debt Amount Transaction Expenses Balance to be used to determine the final Cash Payment. If Buyer does not prepare a Closing Statement within sixty (60) days of the Closing Date, then the certificate provided by the Seller Representative pursuant to Section 1.3 shall be determinative of the final Cash Payment (the “Final Cash Payment”)calculation.

Cash Payment Determination. Within ninety (90) days after the Closing Date, the Company Buyer shall prepare and deliver to the Investor Representative (a) a statement setting forth the CompanyBuyer’s good faith calculation of the Debt Amount, (i) the Working Capital and the Working Capital Surplus or Working Capital Deficit, if any, and (ii) the Cash ShortfallAmount, if any(iii) the amount of Funded Debt, in each case as of (iv) the Closing Date andTransaction Expense Amount, and (v) based on such calculationsthe amounts set forth in clauses (i) through (iv), the Cash Payment (the “Closing Statement”)) and (b) all records and work papers reasonably necessary to compute and verify the information set forth in the Closing Statement. The Closing Statement shall be prepared by Buyer in accordance with the Accounting Methodologies. After delivery of the Closing Statement, the Representative and its accountants shall be permitted to make reasonable inquiries of Buyer and its accountants regarding questions concerning or disagreements with the Closing Statement arising in the course of their review thereof, and Buyer shall, and shall cause the Company, its Subsidiaries and their respective officers, employees, consultants, accountants and agents to (x) reasonably cooperate with the Representative and its accountants in connection with its review of the Closing Statement and the preparation of the Objection Statement and (y) provide any books, records and other information reasonably requested by the Representative and its accountants in connection therewith or in connection with resolving any Objection Dispute. If Buyer does not deliver the Closing Statement to the Representative on or prior to the ninetieth (90th) day following the Closing Date, then the estimated amounts as delivered by the Company pursuant to Section 1.03 shall be final, binding and non-appealable by the Parties, and the Estimated Cash Payment shall be deemed to be the Cash Payment. If the Investor Representative has any objections to the Closing Statement prepared by the Company based on the contention that such Closing Statement was not prepared in accordance with the terms of the AgreementStatement, then the Investor will Representative shall deliver to Buyer a detailed written statement (an “Objection Statement”) setting forth its disputes or objections (the “Objections StatementObjection Disputes”) describing (a) which items on to the Closing Statement have not been prepared in accordance with this Agreement, (b) the basis for the Investor’s disagreement with the calculation of such items and (c) the Investor’s proposed dollar amount for each item in disputeand, to the Company extent practical, the Representative’s proposed resolution of each such Objection Dispute. If an Objection Statement is not delivered to Buyer within thirty forty-five (3045) days after delivery of the Closing Statement. If the Investor fails to deliver an Objections Statement within such thirty (30) day period, then the Closing Statement as originally delivered by Buyer shall become final be final, binding and binding on all non-appealable by the Parties. The Investor If an Objection Statement is timely delivered, then Buyer and the Company Representative shall be deemed to have agreed with all amounts and items contained or reflected negotiate in the Closing Statement to the extent such amounts or items are not disputed in the Objections Statement. If the Investor delivers an Objections Statement within such thirty (30) day period, then the Investor and the Company will use commercially reasonable efforts good faith to resolve any such disputesObjection Disputes, but if they do not reach a final resolution is not obtained within thirty (30) days after the Investor has submitted any Objections Statementsdelivery of the Objection Statement, any remaining matters which are in dispute will be resolved by BDO USA, the Representative and Buyer shall submit each unresolved Objection Dispute to Xxxxx Xxxxxxxx LLP (the “AccountantsIndependent Auditor”)) to resolve such Objection Disputes. The Accountants will prepare and deliver Independent Auditor shall be instructed to set forth a written report procedure to the Investor and the Company and will submit a proposed provide for prompt resolution of such any unresolved disputes promptlyObjection Disputes and, but in any event event, to make its determination in respect of such Objection Disputes within thirty (30) days after the dispute is submitted to the Accountantsfollowing its retention. The Accountants’ Independent Auditor shall be instructed to review only those amounts and items that are in dispute and shall not be permitted to review any items or amounts that are not in dispute. The Independent Auditor shall make its determination based solely on written documents submitted by the Representative and Buyer and their respective representatives. The Independent Auditor’s determination of such unresolved disputes Objection Disputes shall be deemed to be an arbitration award and be final and binding upon all the Parties and not subject to review by a court or other tribunalnon-appealable; provided, however, that no such determination with respect to any item reflected in the Objection Statement shall be any more favorable to the Company Buyer than is set forth in the Closing Statement or any more favorable to the Investor Representative than is proposed in the Objections Objection Statement. The costsfees, costs and expenses and fees of the Accountants Independent Auditor shall be borne by the Party whose calculation of the Cash Payment has the greatest difference from the Final Cash Payment as determined by the Accountants under this Section 1.5; otherwise, such costs, fees and expenses shall be borne equally by the InvestorRepresentative, on the one hand, and the CompanyBuyer, on the other hand, based on the inverse of the percentage of the amounts that the Independent Auditor determines in such Party’s favor bears to the aggregate amount of the total items in dispute as originally submitted to Independent Auditor. For example, should the aggregate items in dispute total $1,000 and the Independent Auditor awards $600 in favor of the Representative’s position, sixty percent (60%) of the costs of its review would be borne by Buyer and forty percent (40%) of the costs would be borne by the Representative. The final Closing Statement, however determined pursuant to this Section 1.51.05, will produce the Working Capital Surplus or Working Capital Deficit, if any, the Cash ShortfallAmount, if any, the Funded Debt and the Debt Amount Transaction Expenses Amount, in each case to be used to determine the final Cash Payment (Payment. The process set forth in this Section 1.05 shall be the “Final exclusive remedy of the Parties for any disputes related to items required to be reflected on the Closing Statement or included in the calculation of Working Capital, the Working Capital Surplus or Working Capital Deficit, if any, the Cash Payment”)Amount, the amount of Funded Debt or the Transaction Expenses Amount.

Cash Payment Determination. Within ninety (90) days after the Closing Date, the Company Buyer shall prepare and deliver to the Investor Representative (a) a statement setting forth the CompanyBuyer’s good faith calculation of the Debt Amount, (i) the Working Capital and the Working Capital Surplus or Working Capital Deficit, if any, and (ii) the Cash ShortfallAmount, if any(iii) the amount of Funded Debt, in each case as of (iv) the Closing Date andTransaction Expense Amount, and (v) based on such calculationsthe amounts set forth in clauses (i) through (iv), the Cash Payment (the “Closing Statement”)) and (b) all records and work papers reasonably necessary to compute and verify the information set forth in the Closing Statement. The Closing Statement shall be prepared by Buyer in accordance with the Accounting Methodologies. After delivery of the Closing Statement, the Representative and its accountants shall be permitted to make reasonable inquiries of Buyer and its accountants regarding questions concerning or disagreements with the Closing Statement arising in the course of their review thereof. If the Investor Representative has any objections to the Closing Statement prepared by the Company based on the contention that such Closing Statement was not prepared in accordance with the terms of the AgreementStatement, then the Investor will Representative shall deliver to Buyer a detailed written statement (an “Objection Statement”) setting forth its disputes or objections (the “Objections StatementObjection Disputes”) describing (a) which items on to the Closing Statement have not been prepared in accordance with this Agreement, (b) the basis for the Investor’s disagreement with the calculation of such items and (c) the Investor’s proposed dollar amount for each item in disputeand, to the Company extent practical, the Representative’s proposed resolution of each such Objection Dispute. If an Objection Statement is not delivered to Buyer within thirty (30) days after delivery of the Closing Statement. If the Investor fails to deliver an Objections Statement within such thirty (30) day period, then the Closing Statement as originally delivered by Buyer shall become final be final, binding and binding on all non-appealable by the Parties. The Investor If an Objection Statement is timely delivered, then Buyer and the Company Representative shall be deemed to have agreed with all amounts and items contained or reflected negotiate in the Closing Statement to the extent such amounts or items are not disputed in the Objections Statement. If the Investor delivers an Objections Statement within such thirty (30) day period, then the Investor and the Company will use commercially reasonable efforts good faith to resolve any such disputesObjection Disputes, but if they do not reach a final resolution is not obtained within thirty (30) days after the Investor has submitted any Objections Statementsdelivery of the Objection Statement, any remaining matters which are in dispute will be resolved by BDO USA, the Representative and Buyer shall submit each unresolved Objection Dispute to Xxxxx Xxxxxxxx LLP (the “AccountantsIndependent Auditor”)) to resolve such Objection Disputes. The Accountants will prepare and deliver Independent Auditor shall be instructed to set forth a written report procedure to the Investor and the Company and will submit a proposed provide for prompt resolution of such any unresolved disputes promptlyObjection Disputes and, but in any event event, to make its determination in respect of such Objection Disputes within thirty (30) days after the dispute is submitted to the Accountantsfollowing its retention. The Accountants’ Independent Auditor shall be instructed to review only those amounts and items that are in dispute and shall not be permitted to review any items or amounts that are not in dispute. The Independent Auditor shall make its determination based solely on written documents submitted by the Representative and Buyer and their respective representatives. The Independent Auditor’s determination of such unresolved disputes Objection Disputes shall be deemed to be an arbitration award and be final and binding upon all the Parties and not subject to review by a court or other tribunalnon-appealable; provided, however, that no such determination with respect to any item reflected in the Objection Statement shall be any more favorable to the Company Buyer than is set forth in the Closing Statement or any more favorable to the Investor Representative than is proposed in the Objections Objection Statement. The costsfees, costs and expenses and fees of the Accountants Independent Auditor shall be borne by the Party whose calculation of the Cash Payment has the greatest difference from the Final Cash Payment as determined by the Accountants under this Section 1.5; otherwise, such costs, fees and expenses shall be borne equally by the InvestorRepresentative, on the one hand, and the CompanyBuyer, on the other hand, based on the inverse of the percentage of the amounts that the Independent Auditor determines in such Party’s favor bears to the aggregate amount of the total items in dispute as originally submitted to Independent Auditor. For example, should the aggregate items in dispute total $1,000 and the Independent Auditor awards $600 in favor of the Representative’s position, sixty percent (60%) of the costs of its review would be borne by Buyer and forty percent (40%) of the costs would be borne by the Representative. The final Closing Statement, however determined pursuant to this Section 1.51.05, will produce the Working Capital Surplus or Working Capital Deficit, if any, the Cash ShortfallAmount, if any, the Funded Debt and the Debt Amount Transaction Expenses Amount, in each case to be used to determine the final Cash Payment (Payment. The process set forth in this Section 1.05 shall be the “Final exclusive remedy of the Parties for any disputes related to items actually reflected on the Closing Statement or actually included in the calculation of Working Capital, the Working Capital Surplus or Working Capital Deficit, if any, the Cash Payment”)Amount, the amount of Funded Debt or the Transaction Expenses Amount.

Cash Payment Determination. Within ninety sixty (9060) days after the Closing Date, the Company Buyer shall prepare and deliver to the Investor Representative a detailed statement setting forth the CompanyBuyer’s calculation of the Cash Amount, Debt Amount, the Transaction Expenses Amount, Working Capital, Working Capital and Working Capital DeficitSurplus, if any, and the Cash ShortfallWorking Capital Deficit, if any, in each case as of the Closing Date Date, together with all records and work papers necessary to compute and verify the information and, based on such calculations, the Cash Payment (the “Closing Statement”). Buyer shall provide Representative access to the books and records used by Buyer to calculate the Closing Statement within a reasonable period of time in order to determine Buyer’s calculation of the Closing Statement. If the Investor Representative has any objections to the Closing Statement prepared by the Company based on the contention that such Closing Statement was not prepared in accordance with the terms of the AgreementBuyer, then the Investor Representative will deliver a detailed written statement (the “Objections Statement”) describing (a) which items on the Closing Statement have not been prepared in accordance with this Agreement, (b) the basis for the InvestorRepresentative’s disagreement with the calculation of such items and (c) the InvestorRepresentative’s proposed dollar amount for each item in dispute, to the Company Buyer within thirty fifteen (3015) days after delivery of the Closing Statement. If the Investor Representative fails to deliver an Objections Statement within such thirty fifteen (3015) day period, then the Closing Statement shall become final and binding on all Parties. The Investor and the Company Representative shall be deemed to have agreed with all amounts and items contained or reflected in the Closing Statement to the extent such amounts or items are not disputed in the Objections Statement. If the Investor Representative delivers an Objections Statement within such thirty fifteen (3015) day period, then the Investor Representative and the Company Buyer will use commercially reasonable efforts to resolve any such disputes, but if a final resolution is not obtained within thirty (30) days after the Investor Representative has submitted any Objections Statements, any remaining matters which are in dispute will be resolved by BDO USA, RSM US LLP (the “Accountants”). The Accountants will prepare and deliver a written report to the Investor Buyer and the Company Representative and will submit a proposed resolution of such unresolved disputes promptly, but in any event within thirty (30) days after the dispute is submitted to the Accountants. The Accountants shall act as an expert, not as an arbitrator, in resolving the unresolved disputes, and the proceeding before the Accountants shall be an expert determination under the Law governing expert determination and appraisal proceedings. The Accountants’ determinations shall be based solely on the submissions by the Parties (and not by independent review), this Agreement and the applicable defined terms set forth in this Agreement. The Accountants’ determination of such unresolved disputes shall will be final and binding upon all Parties and not subject to review by a court or other tribunaltribunal absent manifest error; provided, however, that no such determination shall be any more favorable to the Company Buyer than is set forth in the Closing Statement or any more favorable to the Investor Representative than is proposed in the Objections Statement. The costs, expenses and fees of the Accountants shall be borne by the Party whose calculation of the Cash Payment has the greatest difference from the Final final Cash Payment as determined by the Accountants under this Section 1.5; otherwise, such costs, fees and expenses shall be borne equally by the InvestorBuyer, on the one hand, and the CompanyRepresentative (on behalf of the Sellers), on the other hand. The final Closing Statement, however determined pursuant to this Section 1.5, will produce the Working Capital Surplus, if any, the Working Capital Deficit, if any, the Cash ShortfallAmount, if any, the Debt Amount and the Debt Transaction Expenses Amount to be used to determine the final Cash Payment (the “Final Cash Payment”).