CONTRIBUTION AND JOINT VENTURE AGREEMENT

DATED

AS OF OCTOBER 7, 2009

BY AND AMONG

FIRST MARINER BANCORP,

MARINER FINANCE, LLC,

MF RAVEN HOLDINGS, INC.

AND

MF HOLDCO, LLC

 

 

CONTRIBUTION AND JOINT VENTURE AGREEMENT

TABLE OF CONTENTS

 

 

 

 

CONTRIBUTION AND JOINT VENTURE AGREEMENT

THIS CONTRIBUTION AND JOINT VENTURE AGREEMENT (this “Agreement”),   dated as of October 7, 2009, is made and entered into by and among First Mariner Bancorp, a Maryland corporation (“FMB”), Mariner Finance, LLC, a Maryland limited liability company (the “Company”), MF Raven Holdings, Inc., a Delaware corporation (“JV Corp”), and MF Holdco, LLC, a Delaware limited liability company (“Holdco”).  FMB, the Company, JV Corp and Holdco are sometimes referred to collectively herein as the “Parties” and individually as a “Party.”

RECITALS

A.           FMB owns all of the issued and outstanding membership interests of the Company (the “Interests”).

B.           At Closing (as defined herein), FMB desires to contribute all of the Interests to JV Corp (the “FMB Contribution”), and JV Corp desires to exchange for such Interests a combination of cash and fifty (50) shares of JV Corp Common Stock (as defined herein) on the terms and conditions hereinafter set forth.

C.           At Closing, Holdco desires to contribute the Holdco Contribution (as defined herein) to JV Corp, and JV Corp desires to exchange for the Holdco Contribution nine hundred fifty (950) shares of JV Corp Common Stock on the terms and conditions hereinafter set forth.

D.           The Parties intend that the FMB Contribution and the Holdco Contribution, collectively, be treated as a transfer pursuant to Section 351 of the Code (as defined herein).

E.           The Company desires to join in this Agreement for the purposes of acknowledging its role in facilitating the consummation of the Transactions (as defined herein) and setting forth certain representations, warranties and covenants to cooperate with and otherwise assist the other Parties with respect thereto.

AGREEMENT

NOW, THEREFORE, in consideration of the premises and the mutual covenants, promises and undertakings set forth in this Agreement, the Parties, intending to be legally bound, hereby agree as follows:

ARTICLE I

DEFINITIONS

The following terms shall have the indicated meanings unless the context requires otherwise:

“ Affiliate ” means, with respect to any Person, another Person that controls, is controlled by or is under common control with such Person.

 

 

“ Agreement ” has the meaning given such term in the opening paragraph of this Agreement.

“ Basket ” has the meaning given such term in Section 6.5(a) of this Agreement.

“ Borrowed Indebtedness ” means, as to the Company and the Subsidiaries (i) all obligations (whether interest, principal, fees, penalties or otherwise) of the Company for borrowed money, (ii) all obligations of the Company or any Subsidiary evidenced by bonds, debentures, notes or other similar instruments, (iii) all obligations of the Company or any Subsidiary to pay the deferred purchase price of property or services, except trade accounts payable arising in the ordinary course of business, (iv) all obligations of the Company or any Subsidiary under capitalized equipment leases, and (v) any of the foregoing guaranteed by the Company or any Subsidiary; excluding, however, any advances under the Wells Fargo Facility and the FMB Subdebt.

“ Business ” means the business conducted by the Company and the Subsidiaries.

“ Business Day ” means any day the banks in Baltimore, Maryland are open for business.

“ Cap ” has the meaning given such term in Section 6.5(b) of this Agreement.

“ Change in Control ” means, with respect to any Person, any of the following:  (i) the acquisition by any other Person of more than 50% of the voting securities of such Person, or all or substantially all of the assets of such Person; (ii) during any 24-month period, individuals who at the beginning of any such period constitute the Board of Directors (or similar governing body) of such Person cease for any reason to constitute at least a majority thereof, unless the election, or the nomination for election by such Person’s stockholders, of each director of such Person first elected during such period was approved by a vote of at least two-thirds of the directors of such Person then still in office who were directors of such Person at the beginning of any such period; (iii) a merger, consolidation, or other combination transaction involving such Person in which the holders of the voting securities of such Person prior to such transaction would not have the ability to cast more than 50% of the votes which all security holders of the Person surviving such transaction would be entitled to cast, (iv) any dissolution, liquidation, bankruptcy, assignment for the benefit of creditors, foreclosure of all or substantially all of the assets of such Person, or (v) any similar transaction or occurrence with respect to such Person.

“ Changes in Economic Conditions ” means changes in economic conditions affecting financial institutions generally, including, without limitation, changes in market interest rates or the projected future interest rate environment.

“ Claim ” has the meaning given such term in Section 6.4 of this Agreement.

“ Claim Notice ” has the meaning given such term in Section 6.4 of this Agreement.

“ Claim Response ” has the meaning given such term in Section 6.4 of this Agreement.

“ Closing ” has the meaning given such term in Section 2.4 of this Agreement.

 

 

“ Closing Date ” has the meaning given such term in Section 2.4 of this Agreement.

“ Closing Date Balance Sheet ” has the meaning given such term in Section 2.5(b)(1) of this Agreement.

“ Closing Net Assets ” has the meaning given such term in Section 2.5(c) of this Agreement.

“ COBRA ” has the meaning given such term in Section 3.1(t)(7) of this Agreement.

“ Code ” means the Internal Revenue Code of 1986, as amended.

“ Commitment ” and “ Commitments ” have the meanings given such terms in Section 3.1(n)(1) of this Agreement.

“ Company ” has the meaning given such term in the opening paragraph of this Agreement.

“ Company Intellectual Property ” has the meaning given such term in Section 3.1(o)(1) of this Agreement.

“ Company Savings Plan ” has the meaning given such term in Section 5.3(b) of this Agreement.

“ Competing Business ” has the meaning given such term in Section 5.6(a)(1) of this Agreement.

“ Covenant Period ” has the meaning given such term in Section 6.1 of this Agreement.

“ Derivative Transactions ” means any swap transaction, option, warrant, forward purchase or sale transaction, futures transaction, cap transaction, floor transaction or collar transaction relating to one or more currencies, commodities, bonds, equity securities, loans, interest rates, prices, values, or other financial or nonfinancial assets, credit-related events or conditions or any indexes, or any other similar transaction or combination of any of these transactions, including collateralized mortgage obligations or other similar instruments or any debt or equity instruments evidencing or embedding any such types of transactions, and any related credit support, collateral or other similar arrangements related to such transactions.

“ Disclosed ” means, with respect to FMB or the Company, disclosed in the written information included in the Schedules attached to this Agreement which describe in reasonable detail the matters contained therein.

“ Employee Benefit Plan ” and “ Employee Benefit Plans ” have the meanings given such terms in Section 3.1(t)(1) of this Agreement.

“ Encumbrance ” means any lien, charge, mortgage, pledge, security interest, encumbrance, assessment or adverse claim by a third party; excluding, however, any lien, charge, mortgage, pledge, security interest, encumbrance, assessment or adverse claim created or imposed pursuant to the Wells Fargo Facility, the FMB Subdebt or any modifications or replacements thereof.

 

 

“ Environmental Laws ” has the meaning given such term in Section 3.1(p) of this Agreement.

“ ERISA ” means the Employee Retirement Income Security Act of 1974, as amended.

“ ERISA Affiliate ” means any trade or business (whether or not incorporated) under common control with the Company within the meaning of Section 414(b), 414(c), 414(m) or 414(o) of the Code.

“ Escrow Agent ” has the meaning given such term in Section 2.3(a)(2) of this Agreement.

“ Escrow Agreement ” has the meaning given such term in Section 2.7 of this Agreement.

“ Escrow Funds ” has the meaning given such term in Section 2.3(a)(1) of this Agreement.

“ Exchange Amount ” has the meaning given such term in Section 2.2(a) of this Agreement.

“ Exchange Stock ” has the meaning given such term in Section 2.3(a) of this Agreement.

“ Final Adjustment Amount ” has the meaning given such term in Section 2.5(b)(3) of this Agreement.

“ Final Closing Net Assets ” has the meaning given such term in Section 2.5(b)(3) of this Agreement.

“ Financial Statements ” has the meaning given such term in Section 3.1(e) of this Agreement.

“ FMB ” has the meaning given such term in the opening paragraph of this Agreement.

“ FMB Computation ” has the meaning given such term in Section 2.5(b)(2) of this Agreement.

“ FMB Contribution ” has the meaning given such term in the Recitals of this Agreement.

“ FMB Indemnitees ” has the meaning given such term in Section 6.3 of this Agreement.

“ FMB Notice ” has the meaning given such term in Section 2.5(b)(2) of this Agreement.

“ FMB Subdebt ” means the Company’s subordinated indebtedness to FMB in the outstanding principal amount of $4,000,000.00, which is evidenced by that certain Master Demand Note dated July 18, 2006 in the face amount of $8,000,000.00 , and which shall be amended at Closing in accordance with Section 4.1(l) of this Agreement.

 

 

“ GAAP ” means generally accepted accounting principles in the United States, as in effect on the date thereof, applied on a basis consistent with prior periods.

“ General Survival Period ” has the meaning given such term in Section 6.1 of this Agreement.

“ Governmental Authority ” means any foreign, federal, state or local government, political subdivision or governmental or regulatory authority, agency, board, bureau, commission, instrumentality or court or quasi-governmental authority.

“ Hazardous Materials ” has the meaning given such term in Section 3.1(p) of this Agreement.

“ Holdco ” has the meaning given such term in the Recitals of this Agreement.

“ Holdco Contribution ” means that cash contribution in the amount of $12,825,000.00 to be contributed by Holdco to JV Corp.

“ Holdco Exchange Stock ” has the meaning given such term in Section 2.2(b) of this Agreement.

“ Indemnified Party ” has the meaning given such term in Section 6.4 of this Agreement.

“ Indemnifying Party ” has the meaning given such term in Section 6.4 of this Agreement.

“ Independent Accountant ” has the meaning given such term in Section 2.5(b)(2) of this Agreement.

“ Initial Cash Consideration ” has the meaning given such term in Section 2.3(a)(1) of this Agreement.

“ Initial Exchange Amount ” has the meaning given such term in Section 2.2(a) of this Agreement.

“ Intellectual Property ” has the meaning given such term in Section 3.1(o)(1) of this Agreement.

“ Interests ” has the meaning given such term in the Recitals of this Agreement.

“ Interim Balance Sheet ” has the meaning given such term in Section 3.1(e) of this Agreement.

“ Interim Date ” has the meaning given such term in Section 3.1(e) of this Agreement.

“ Interim Statements ” has the meaning given such term in Section 3.1(e) of this Agreement.

“ JV Corp ” has the meaning given such term in the opening paragraph of this Agreement.

 

 

“ JV Corp Common Stock ” has the meaning given such term in Section 3.2(b) of this Agreement.

“ JV Corp Computation ” has the meaning given such term in Section 2.5(b)(1) of this Agreement.

“ JV Corp Indemnitees ” has the meaning given such term in Section 6.2 of this Agreement.

“ JV Corp Payments ” has the meaning given such term in Section 2.3(a) of this Agreement.

“ Knowledge ” means:  (i) with respect to a Person who is an individual, matters actually known to that Person; (ii) with respect to FMB, matters actually known to the directors and executive officers of FMB and the Company; and (iii) with respect to JV Corp, matters actually known to the directors and executive officers of JV Corp, and with respect to (i), (ii) and (iii), the knowledge any such Person would have had after reasonable inquiry.

“ Laws ” has the meaning given such term in Section 3.1(d) of this Agreement.

“ Liabilities ” has the meaning given such term in Section 3.1(f) of this Agreement.

“ Licensed Intellectual Property ” has the meaning given such term in Section 3.1(o)(1) of this Agreement.

“ Loan ” and “ Loans ” have the meanings given such terms in Section 3.1(j)(2) of this Agreement.

“ Losses ” has the meaning given such term in Section 6.2 of this Agreement.

“ Material Adverse Effect ” means, with respect to any Party, any change or effect that (a) is, or is reasonably likely to be, material and adverse to the financial condition, results of operations, cash flows, products, product offering, assets or business of such Party or (b) would materially impair the ability of such Party to perform its obligations under this Agreement or otherwise materially threaten or materially impede the consummation of the Transactions; provided, however , that in no event shall any matters Disclosed in a Schedule delivered on the date of this Agreement pursuant to Article III hereof be deemed to constitute a Material Adverse Effect, nor shall any of the following, alone or in combination, be deemed to constitute, nor be taken into account in determining whether there has been or will be, a Material Adverse Effect on any Party:  (i) changes in tax, banking and similar laws of general applicability or interpretations thereof by courts or governmental authorities, except to the extent such change has or would have a disproportionate effect on the business of such Party as compared to other Persons in the industry in which such Party operates; (ii) changes in GAAP or regulatory accounting requirements applicable to banks and their Affiliates generally; (iii) Changes in Economic Conditions; (iv) actions and omissions of FMB, the Company or JV Corp taken with the prior written consent of the other Parties in contemplation of the Transactions; (v) any change or effect resulting from compliance with this Agreement, including expenses incurred by the Parties in consummating the Transactions; (vi) any natural disaster or any acts of terrorism, sabotage, military action or war (whether or not declared) or any escalation or worsening thereof, except to the extent such event has or would have a disproportionate effect on the business of such Party; and (vii) in the case of FMB, the Company and the Subsidiaries, any litigation arising after the date hereof from allegations of a breach of fiduciary duty or misrepresentation in any disclosure by FMB, the Company or any of the Subsidiaries relating to this Agreement or the Transactions.

 

 

“ Modified Note ” has the meaning given such term in Section 4.1(l) of this Agreement.

“ Mortgage Services Agreement ” has the meaning given such term in Section 4.1(i)(11) of this Agreement.

“ Mortgaged Property ” has the meaning given such term in Section 3.1(j)(2)(x) of this Agreement.

“ Mortgage Subsidiary ” means Mariner Finance Mortgage, LLC, a Maryland limited liability company.

“ New Lease ” has the meaning given such term in Section 4.1(i)(7) of this Agreement.

“ Note ” means, with respect to any Loan, the related promissory note together with all riders thereto and amendments thereof or other evidence of indebtedness of the related borrower.

“ Other Laws ” has the meaning given such term in Section 3.1(q) of this Agreement.

“ Parties ” and “ Party ” have the meanings given such terms in the opening paragraph of this Agreement.

“ Person ” means an individual, corporation, partnership, limited liability company, joint venture, trust, or unincorporated organization or other entity, or any Governmental Authority.

“ Preliminary Adjustment Amount ” has the meaning given such term in Section 2.5(a) of this Agreement.

“ Preliminary Closing Net Assets ” has the meaning given such term in Section 2.5(a) of this Agreement.

“ Regulatory Agreement ” has the meaning given such term in Section 3.1(y)(2) of this Agreement.

“ Representative ” or “ Representatives ” means, with respect to a Person, the directors, officers, employees, managers, members, partners, stockholders, investors, counsel, accountants, and other representatives of such Person.

“ Schedule ” or “ Schedules ” means the Schedules that a Party prepares and delivers to another Party pursuant to Article III of this Agreement.

 

 

“ Section 362(e)(2)(C) Election ” has the meaning given such term in Section 5.1(i) of this Agreement.

“ Servicing File ” shall mean with respect to each Loan, the file retained by the Company or a Subsidiary (as applicable), in its capacity as a servicer of the Loan, consisting of all documents that a prudent originator and servicer would have, including copies of the Note and all other documents necessary to document and service the Loan.

“ Severance Agreements ” means, collectively, that certain Severance Agreement – Change in Control dated April 29, 2002 by and between FMB and Joshua Johnson, that certain Severance Agreement – Change in Control dated April 29, 2002 by and between FMB and Scott Frankle, that certain Severance Agreement – Change in Control dated April 29, 2002 by and between FMB and Bonnie Klapaska, that certain Severance Agreement – Change in Control dated February 9, 2009 by and between FMB and Robert E. Burns, that certain Severance Agreement – Change in Control dated February 9, 2009 by and between FMB and Curtis R. Mackinson, and that certain Severance Agreement – Change in Control dated February 9, 2009 by and between FMB and Laird R. Oskin.

“ Stockholders Agreement ” has the meaning given such term in Section 4.1(i)(9) of this Agreement.

“ Sub Interests ” has the meaning given such term in Section 3.1(a)(2) of this Agreement.

“ Subsidiary ” means each of Mortgage Subsidiary and Virginia Subsidiary.  Mortgage Subsidiary and Virginia Subsidiary are sometimes collectively referred to herein as “ Subsidiaries ”.

“ Survival Period ” has the meaning given such term in Section 6.1 of this Agreement.

“ Target Closing Net Assets ” means $21,500,000.00.

“ Tax ” or “ Taxes ” means any federal, state, local or foreign income, gross receipts, payroll, excise, severance, stamp, occupation, premium, windfall profits tax, environmental, bank shares, ad valorem, employment, worker’s compensation, custom, duty, capital stock, franchise, profits, withholding, social security (or similar), unemployment, disability, real property, personal property, sales, use, transfer, registration, value added, alternative or add-on minimum, estimated, or other tax, assessment, fee or levy of any kind whatsoever, including any interest, penalty, or addition thereto, whether disputed or not.

“ Tax Opinion ” has the meaning given such term in Section 4.2(i) of this Agreement.

“ Tax Returns ” means all returns, reports, declarations, claims for refund, information returns or statements relating to Taxes, including any schedule or attachment thereto, and any amendment thereof.

“ Trademark License Agreement ” has the meaning given such term in Section 4.1(i)(12) of this Agreement.

 

 

“ Transactions ” has the meaning given such term in Section 2.4 of this Agreement.

“ Transferred Employees ” has the meaning given such term in Section 5.3(a) of this Agreement.

“ Transferred Mortgage Loans ” means those mortgage loans identified on Schedule 1 , each of which is owned by the Company or one of the Subsidiaries, and all of which are to be sold and assigned to FMB and/or any of its Affiliates (other than the Company and the Subsidiaries) prior to Closing in accordance with Section 4.1(m) of this Agreement.

“ Transition Services Agreement ” has the meaning given such term in Section 4.1(i)(10) of this Agreement.

“ Virginia Subsidiary ” means Mariner Finance of Virginia, LLC, a Virginia limited liability company.

“ Wells Fargo Facility ” means that $85,000,000.00 secured revolving line of credit with Wells Fargo Preferred Capital, Inc. as agent for certain lenders, and, as applicable, such line as modified in accordance with Section 4.1(k) of this Agreement to, among other things, increase the amount of the line to $95,000,000.00.

“ Year-End Statements ” has the meaning given such term in Section 3.1(e) of this Agreement.

ARTICLE II

CONTRIBUTIONS AND EXCHANGES

Section 2.1.            Agreements to Contribute .    Upon the terms and subject to the conditions set forth in this Agreement, on the Closing Date:

(a)           FMB shall contribute, sell, grant, convey, assign, transfer and deliver to JV Corp, and JV Corp shall accept, purchase and acquire from FMB, all of the Interests, free and clear of all Encumbrances; and

(b)           Holdco shall contribute to JV Corp, and JV Corp shall accept from Holdco, the Holdco Contribution.

Section 2.2.            Consideration Exchanged for Contributions .

(a)           JV Corp shall transfer to or for the account of FMB in exchange for the Interests consideration consisting of stock and cash having an aggregate value of $10,500,000.00 (the “Initial Exchange Amount”), subject to the adjustments set forth in Section 2.5 (the Initial Exchange Amount, as so adjusted, the “Exchange Amount”) and as more particularly described in Section 2.3(a) .

(b)           JV Corp shall transfer to Holdco in exchange for the Holdco Contribution nine hundred fifty (950) shares of JV Corp Common Stock (the “Holdco Exchange Stock”), free and clear of all Encumbrances.

 

 

Section 2.3.            Delivery of Contributions .

(a)           On the Closing Date, FMB shall deliver the Interests to JV Corp, and JV Corp shall issue fifty (50) shares of JV Corp Common Stock (the “Exchange Stock”), which, for purposes of this Agreement, shall have at Closing a value of $675,000.00, in the name of FMB, and deliver by wire transfer of immediately available funds (the “JV Corp Payments”):

(1)           to an account designated by FMB, an amount equal to the difference of (i) $9,825,000.00, adjusted as a result of the calculation of the Preliminary Adjustment Amount more particularly described in Section 2.5(a) , minus (ii) the sum of (A) $1,050,000.00 (the “Escrow Funds”) plus (B) the amount, if any, of outstanding Borrowed Indebtedness as of the Closing Date (the amount equal to the difference of (i) minus (ii) being the “Initial Cash Consideration”);

(2)           to an escrow agent appointed by FMB and JV Corp and named in the Escrow Agreement (the “Escrow Agent”), the Escrow Funds; and

(3)           to each payee designated on Schedule 2.3(a) (as such Schedule may be updated at or prior to Closing), such portion of the Borrowed Indebtedness owed to such payee, on behalf of the Company.

(b)           On the Closing Date, Holdco shall deliver the Holdco Contribution by wire transfer of immediately available funds to an account designated by JV Corp and JV Corp shall issue the Holdco Exchange Stock in the name of Holdco.

Section 2.4.            Closing .  The contribution and exchange of the Interests, the Exchange Stock, the Holdco Exchange Stock and the other transactions contemplated hereby (the “Transactions”) shall occur at a closing (the “Closing”) to be held on a Friday at the offices of the Company, located at 3301 Boston Street, Baltimore, Maryland 21224, at 10:00 a.m., local time, or at such other time, place, and manner as the Parties shall mutually agree, on a date to be mutually agreed upon between the Parties (the “Closing Date”), which date shall be after the receipt of all regulatory approvals required by law and this Agreement, the expiration of any applicable waiting periods, and the satisfaction or waiver of all other conditions required to be satisfied prior to the Closing by this Agreement.

Section 2.5.            Adjustment to Exchange Amount .

(a)            Preliminary Closing Net Asset Adjustment .  Three (3) Business Days prior to the Closing, FMB will deliver to JV Corp an estimated consolidated balance sheet of the Company and the Subsidiaries as of the Closing Date, prepared in accordance with GAAP applied on a basis consistent with the Interim Balance Sheet, together with a preliminary statement reflecting its good faith estimate of the Closing Net Assets of the Company and the Subsidiaries on such date, which shall be reasonably acceptable to JV Corp (“Preliminary Closing Net Assets”).  In conjunction with the preparation of the Preliminary Closing Net Assets, FMB and the Company will make all work papers, schedules and other supporting materials available to JV Corp at reasonable times and upon reasonable notice and upon request will explain to JV Corp and its Representatives the methods used to calculate such items.  The “Preliminary Adjustment Amount” shall equal the difference of the Preliminary Closing Net Assets minus the Target Closing Net Assets.  If the Preliminary Adjustment Amount is positive, the Initial Cash Consideration to be paid in accordance with Section 2.3(a)(1) shall be increased dollar-for-dollar by an amount equal to the Preliminary Adjustment Amount.  If the Preliminary Adjustment Amount is negative, the Initial Cash Consideration to be paid in accordance with Section 2.3(a)(1) shall be decreased dollar-for-dollar by an amount equal to the absolute value of the Preliminary Adjustment Amount.

 

 

(b)            Closing Net Asset Adjustment .

(1)           No later than ninety (90) calendar days after the Closing, JV Corp, at its cost and expense, shall prepare and deliver to FMB a consolidated balance sheet of the Company and the Subsidiaries as of the close of business on the Closing Date (the “Closing Date Balance Sheet”), prepared in accordance with GAAP applied on a basis consistent with the Company’s and the Subsidiaries’ past practices, and shall prepare and deliver to FMB a statement of its calculation of the Closing Net Assets as of the close of business on the Closing Date (together with the Closing Date Balance Sheet, the “JV Corp Computation”).  FMB shall cooperate with JV Corp and make available to JV Corp such assistance, information and materials as JV Corp may reasonably request in connection with its preparation of the JV Corp Computation.

(2)           If FMB objects to the JV Corp Computation provided to it by JV Corp, then within thirty (30) calendar days of its receipt of the JV Corp Computation, FMB shall give written notice (the “FMB Notice”) to JV Corp with a detailed statement describing its objections to JV Corp’s determination of such figures and specifying its determination of such figures (the “FMB Computation”).  During such thirty-day period, FMB and its accountants shall be entitled to review all work papers, schedules and supporting materials of JV Corp and its accountants related to the preparation of the JV Corp Computation.  If JV Corp has not received the FMB Notice within such thirty-day period, FMB shall be deemed to have no objection to the JV Corp Computation and the JV Corp Computation shall become final and binding on the Parties hereto as the Closing Net Assets for all purposes of this Agreement.  JV Corp and FMB shall negotiate in good faith to resolve any disputes regarding the JV Corp Computation as promptly as practicable.  If JV Corp and FMB are unable to resolve all disputes within thirty (30) calendar days of receipt by JV Corp of the FMB Notice, then only the unresolved disputes shall be submitted to an independent certified public accounting firm selected by FMB and JV Corp (the “Independent Accountant”) for determination in the manner set forth in this Agreement.  JV Corp and FMB shall be entitled to provide the Independent Accountant with supporting documentation in connection with resolution of such disputes.  The Independent Accountant shall, within thirty (30) calendar days of its engagement, provide a final and conclusive resolution of all unresolved disputes related to the JV Corp Computation and the FMB Computation.  All references in this Agreement to the Closing Net Assets shall mean the Closing Net Assets as finally determined in accordance with this Section 2.5(b) , and the resolution of the Independent Accountant shall be binding on the Parties hereto.  The fees and expenses of the Independent Accountant shall be shared equally by JV Corp and FMB.