Common use of MEMBERSHIPS; BUYER'S TRANSFER SYSTEM; ADJUSTMENTS Clause in Contracts

MEMBERSHIPS; BUYER'S TRANSFER SYSTEM; ADJUSTMENTS. Notwithstanding anything to the contrary in this Agreement or in the Acquisition Agreements, Buyer, Seller and Seller's Principals agree as follows: (i) With respect to revenues received by Seller from Present Members for initiation fees and other fees from monthly dues Present Members, in each case for Present Members who joined or renewed their Present Memberships within 45 days prior to the Closing Date, or in the case of "Preferred memberships" on or after June 1, 1998 (provided that such June 1, 1998 date shall be amended in the event the Closing fails to occur as a result of Buyer's failure to use reasonable efforts to close on or about the Closing Date, provided, further, that Buyer shall in no event be entitled to an allocation of more than 60 days with respect to past "Preferred memberships), and, in each case, up to and including the Closing Date, and in full satisfaction thereof, Seller shall pay to Buyer on the Closing Date Buyer's share of all such amounts received ("Buyer's Initiation/Fee Amount"), which amount shall be calculated in accordance with the allocations set forth on Schedule 3(a) hereof. Seller, Seller's Principals and Buyer agree that in the event that any memberships have been sold during the relevant periods indicated above by Seller other than memberships with the specific terms indicated in Schedule 3(a), Seller, Seller's Principals and Buyer shall each act in good faith to divide the fees received for such memberships among Buyer and Seller in accordance with the terms and the spirit of Schedule 3(a); (ii) Buyer and Seller agree that there are certain post-dated checks and post-dated credit card receipts held by Seller which will be deposited after the date hereof ("PostDated Amounts"). Seller and Buyer shall allocate these amounts in accordance with Schedule 3(a) on the Closing Date; (iii) Buyer and Seller agree that there are certain Present Members who have pre-paid their monthly membership dues for some period of time ("Pre-Paid Amounts"

MEMBERSHIPS; BUYER'S TRANSFER SYSTEM; ADJUSTMENTS. Notwithstanding anything to the contrary in this Agreement or in the Acquisition Agreements, Buyer, the Buyer and Seller and Seller's Principals agree as follows: (i) a. With respect to revenues received by Seller from Present Members for initiation fees and other fees from monthly dues Present Members, in each case for so-called "paid-in-full" Present Members who joined or renewed their Present Memberships within 45 days prior to the Closing Date, or in the case of "Preferred memberships" on or after June September 1, 1998 (provided that such June 1, 1998 date shall be amended in the event the Closing fails to occur as a result of Buyer's failure to use reasonable efforts to close on or about the Closing Date, provided, further, that Buyer shall in no event be entitled to an allocation of more than 60 days with respect to past "Preferred memberships), and, in each case, 1997 and up to and including the Closing Date, and in full satisfaction thereof, Seller shall pay to Buyer on the Closing Date the amount of Twenty Thousand Dollars ($20,000.00) ("BUYER'S 1997-1998 PAID-IN-FULL AMOUNT"). (i) Buyer shall be entitled to receive and retain, for Buyer's share of own account, any and all such amounts monies received ("Buyer's Initiation/Fee Amount"), which amount shall be calculated after the Closing Date in accordance connection with the allocations set forth on Schedule 3(a) hereof. Seller, Seller's Principals and Buyer agree that in operation of the event that any memberships have been sold during the relevant periods indicated above by Seller other than memberships with the specific terms indicated in Schedule 3(a), Seller, Seller's Principals and Buyer shall each act in good faith to divide the fees received for such memberships among Buyer and Seller in accordance with the terms and the spirit of Schedule 3(a);Business. (ii) Buyer shall be entitled to receive and retain any and all electronic fund transfers and credit card payments (together, "EFT PAYMENTS") made by Present Members, received by Seller or Buyer after the Closing Date. All EFT Payments received by Seller PRIOR to the Closing Date ("PRE-CLOSING DATE EFT PAYMENTS") shall be pro-rated between Seller and Buyer in accordance with the percentage that the corresponding services are to be provided by Seller (i.e. on or prior to the Closing Date) or Buyer (i.e. after the Closing Date). On the Closing Date, Seller shall pay to Buyer, Buyer's pro-rated share of the Pre-Closing Date EFT Payments. (For example, if the Closing Date occurs on March 15, 1998 and Seller agree has collected $100,000.00 of EFT Payments on March 1, 1998, then Buyer shall be paid $50,000.00 of such EFT Payments by Seller and Seller shall be entitled to retain $50,000.00 of such amount.) (iii) Seller shall instruct its EFT billing service (the "EFT SERVICE"), in writing if necessary, that, as of the Closing Date, Buyer has the sole right to all information concerning, and proceeds from, Seller's EfT system, and that there the EFT Service must provide full assistance and access to Buyer in the collection of EFT Payments. All such proceeds from the EFT system shall at all times be the sole and exclusive property of Buyer, and shall be immediately delivered to Buyer. (iv) Immediately subsequent to the Closing Date, Seller shall assist Buyer, if requested by Buyer, with the transfer of all EFT Payment data from Seller's EFT system to Buyer's EFT system and shall continue to assist Buyer until such transfer is completed. (v) Seller shall have no right to collect any EFT Payments from Present Members after the Closing Date. In the event that Buyer, after due investigation, reasonably believes that Seller has debited any Present Member's account through an EFT Payment, Seller shall, within three (3) days of written notice from Buyer, provide Buyer with access to the complete and accurate records of its system which services and manages EFT Payments, in order for Buyer to determine if such amounts have, in fact, been debited by Seller. In the event Seller fails to pay any such improperly debited amounts to Buyer within three (3) days of notice from Buyer of the improperly debited amounts, Buyer shall have an immediate right of offset against any payments required to be made to Seller pursuant to the TSI Note. (vi) Buyer's rights under this subsection 3(b) shall be subject to Seller's rights to the Xxxxxxxxxx Receivables (as defined herein). c. As of the Closing Date, the parties shall make adjustments between them for (i) electricity, gas, telephone and other utilities, water charges and sewer rents, and (ii) all other obligations with respect to the expenses of the Business which are certain post-dated checks and post-dated assumed by Buyer pursuant to this Agreement, including, but not limited to, cable television, credit card receipts held by fees, collection fees, yellow pages fees, advertising fees, and the like. To the extent all of these adjustments cannot be completed on the Closing Date, the parties agree to make adjustment between them for such items as soon as reasonably possible after the Closing Date, such that Seller which will be deposited responsible for items of expense allocable to periods up to and including the Closing Date and Buyer will be responsible for items of expense allocable to periods commencing the day after the date hereof Closing Date, except as otherwise provided in this Agreement. All adjustments made in connection with this Agreement shall be made in accordance with generally accepted accounting principles, consistently applied ("PostDated AmountsGAAP"). (A) Seller shall allow Buyer to maintain all of Seller's financial books, records and files at the Demised Premises until Buyer has satisfactorily completed an audit of all such financial information. Seller and Seller's accountants shall cooperate with such audit. Such audit shall be completed no later than sixty (60) days after the Closing Date (the "POST- CLOSING AUDIT PERIOD"). (B) During the Post-Closing Audit Period, Seller and its bookkeeper and accountant shall have non-exclusive access to the former office of Xxxxx Xxxxxxxxxx for the purpose of reviewing Seller's financial books, records and files, and shall have the right to review and copy all such books, records and files; PROVIDED, HOWEVER, that such actions do not disrupt the Business. (C) During the Post-Closing Audit Period, Buyer, at Buyer's expense, may utilize Seller's accountant to assist in the audit. (ii) Seller and Seller's accountant will, for a period of eighteen (18) months after the Closing Date, provide Buyer with access, upon reasonable notice, to all financial books, records and files of the Business reasonably necessary for Buyer's orderly operation and continuation of the Business. e. Seller shall, for a period of eighteen (18) months after the Closing Date, maintain its corporate existence and remain a corporation in good standing in the State of New Jersey. (i) Seller shall have the right to all accounts receivable collected from members who are delinquent in their payment accounts (each a "DELINQUENT MEMBER") for any and all amounts relating to periods prior to the calendar month in which the Closing occurs (the "XXXXXXXXXX RECEIVABLES"). On the Closing Date, Seller and Buyer shall allocate these prepare a list of all of the affected Delinquent Members and the amounts outstanding (the "XXXXXXXXXX RECEIVABLE LIST"). In addition, (i) all delinquent amounts relating to the month in which the Closing occurs ("CLOSING MONTH DELINQUENT AMOUNTS") shall be collected by Buyer and, upon receipt of such amounts by Buyer, shall be divided, pro-rata, amongst Seller and Buyer in accordance with Schedule 3(athe method set out in subsection 3(b)(ii) of this Agreement, and (ii) on the Closing Date; (iii) , Seller and Buyer and Seller agree that there are certain Present Members who have pre-paid their monthly membership dues for some period shall prepare a list of time ("Pre-Paid the Closing Month Delinquent Amounts".

MEMBERSHIPS; BUYER'S TRANSFER SYSTEM; ADJUSTMENTS. Notwithstanding anything to the contrary in this Agreement or in the Acquisition Agreements, Buyer, the Buyer and Seller and Seller's Principals agree as follows: (i) a. With respect to revenues received by Seller from Present Members for initiation fees and other fees from monthly dues Present Members, in each case for so-called "paid-in-full" Present Members who joined or renewed their Present Memberships within 45 days prior to the Closing Date, or in the case of "Preferred memberships" on or after June September 1, 1998 (provided that such June 1, 1998 date shall be amended in the event the Closing fails to occur as a result of Buyer's failure to use reasonable efforts to close on or about the Closing Date, provided, further, that Buyer shall in no event be entitled to an allocation of more than 60 days with respect to past "Preferred memberships), and, in each case, 1997 and up to and including the Closing Date, and in full satisfaction thereof, Seller shall pay to Buyer on the Closing Date the amount of Forty Thousand Dollars ($40,000.00). ("BUYER'S 1997-1998 PAID-IN-FULL AMOUNT"). (i) Buyer shall be entitled to receive and retain, for Buyer's share of own account, any and all such amounts monies received ("Buyer's Initiation/Fee Amount"), which amount shall be calculated after the Closing Date in accordance connection with the allocations set forth on Schedule 3(a) hereof. Seller, Seller's Principals and Buyer agree that in operation of the event that any memberships have been sold during the relevant periods indicated above by Seller other than memberships with the specific terms indicated in Schedule 3(a), Seller, Seller's Principals and Buyer shall each act in good faith to divide the fees received for such memberships among Buyer and Seller in accordance with the terms and the spirit of Schedule 3(a);Business. (ii) Buyer shall be entitled to receive and retain any and all electronic fund transfers and credit card payments (together, "EFT PAYMENTS") made by Present Members, received by Seller or Buyer after the Closing Date. All EFT Payments received by Seller PRIOR to the Closing Date ("PRE-CLOSING DATE EFT PAYMENTS") shall be pro-rated between Seller and Buyer in accordance with the percentage that the corresponding services are to be provided by Seller (i.e. on or prior to the Closing Date) or Buyer (i.e. after the Closing Date). On the Closing Date, Seller shall pay to Buyer, Buyer's pro-rated share of the Pre-Closing Date EFT Payments. (For example, if the Closing Date occurs on March 15, 1998 and Seller agree has collected $100,000.00 of EFT Payments on March 1, 1998, then Buyer shall be paid $50,000.00 of such EFT Payments by Seller and Seller shall be entitled to retain $50,000.00 of such amount.) (iii) Seller shall instruct its EFT billing service (the "EFT SERVICE"), in writing if necessary, that, as of the Closing Date, Buyer has the sole right to all information concerning, and proceeds from, Seller's EfT system, and that there the EFT Service must provide full assistance and access to Buyer in the collection of EFT Payments. All such proceeds from the EFT system shall at all times be the sole and exclusive property of Buyer, and shall be immediately delivered to Buyer. (iv) Immediately subsequent to the Closing Date, Seller shall assist Buyer, if requested by Buyer, with the transfer of all EFT Payment data from Seller's EFT system to Buyer's EFT system and shall continue to assist Buyer until such transfer is completed. (v) Seller shall have no right to collect any EFT Payments from Present Members after the Closing Date. In the event that Buyer, after due investigation, reasonably believes that Seller has debited any Present Member's account through an EFT Payment, Seller shall, within three (3) days of written notice from Buyer, provide Buyer with access to the complete and accurate records of its system which services and manages EFT Payments, in order for Buyer to determine if such amounts have, in fact, been debited by Seller. In the event Seller fails to pay any such improperly debited amounts to Buyer within three (3) days of notice from Buyer of the improperly debited amounts, Buyer shall have an immediate right of offset against any payments required to be made to Seller pursuant to the TSI Note. (vi) Buyer's rights under this subsection 3(b) shall be subject to Seller's rights to the Xxxxxxxxxx Receivables (as defined herein). c. As of the Closing Date, the parties shall make adjustments between them for (i) electricity, gas, telephone and other utilities, water charges and sewer rents, and (ii) all other obligations with respect to the expenses of the Business which are certain post-dated checks and post-dated assumed by Buyer pursuant to this Agreement, including, but not limited to, cable television, credit card receipts held by fees, collection fees, yellow pages fees, advertising fees, and the like. To the extent all of these adjustments cannot be completed on the Closing Date, the parties agree to make adjustment between them for such items as soon as reasonably possible after the Closing Date, such that Seller which will be deposited responsible for items of expense allocable to periods up to and including the Closing Date and Buyer will be responsible for items of expense allocable to periods commencing the day after the date hereof Closing Date, except as otherwise provided in this Agreement. All adjustments made in connection with this Agreement shall be made in accordance with generally accepted accounting principles, consistently applied ("PostDated AmountsGAAP"). (A) Seller shall allow Buyer to maintain all of Seller's financial books, records and files at the Demised Premises until Buyer has satisfactorily completed an audit of all such financial information. Seller and Seller's accountants shall cooperate with such audit. Such audit shall be completed no later than sixty (60) days after the Closing Date (the "POST- CLOSING AUDIT PERIOD"). (B) During the Post-Closing Audit Period, Seller and its bookkeeper and accountant shall have non-exclusive access to the former office of Xxxxx Xxxxxxxxxx for the purpose of reviewing Seller's financial books, records and files, and shall have the right to review and copy all such books, records and files; PROVIDED, HOWEVER, that such actions do not disrupt the Business. (C) During the Post-Closing Audit Period, Buyer, at Buyer's expense, may utilize Seller's accountant to assist in the audit. (ii) Seller and Seller's accountant will, for a period of eighteen (18) months after the Closing Date, provide Buyer with access, upon reasonable notice, to all financial books, records and files of the Business reasonably necessary for Buyer's orderly operation and continuation of the Business. e. Seller shall, for a period of eighteen (18) months after the Closing Date, maintain its corporate existence and remain a corporation in good standing in the State of New Jersey. (i) Seller shall have the right to all accounts receivable collected from members who are delinquent in their payment accounts (each a "DELINQUENT MEMBER") for any and all amounts relating to periods prior to the calendar month in which the Closing occurs (the "XXXXXXXXXX RECEIVABLES"). On the Closing Date, Seller and Buyer shall allocate these prepare a list of all of the affected Delinquent Members and the amounts outstanding (the "XXXXXXXXXX RECEIVABLE LIST"). In addition, (i) all delinquent amounts relating to the month in which the Closing occurs ("CLOSING MONTH DELINQUENT AMOUNTS") shall be collected by Buyer and, upon receipt of such amounts by Buyer, shall be divided, pro-rata, amongst Seller and Buyer in accordance with Schedule 3(athe method set out in subsection 3(b)(ii) of this Agreement, and (ii) on the Closing Date; (iii) , Seller and Buyer and Seller agree that there are certain Present Members who have pre-paid their monthly membership dues for some period shall prepare a list of time ("Pre-Paid the Closing Month Delinquent Amounts".

MEMBERSHIPS; BUYER'S TRANSFER SYSTEM; ADJUSTMENTS. Notwithstanding anything to the contrary in this Agreement or in the Acquisition Agreements, Buyer, Seller and Seller's Principals agree as follows: (i) With respect to revenues received by Seller from Present Members for initiation fees and other fees from monthly dues Present Members, in each case for Present Members who joined or renewed their Present Memberships within 45 days prior to the Closing Date, or in the case of "Preferred memberships" on or after June 1, 1998 (provided that such June 1, 1998 date shall be amended in the event the Closing fails to occur as a result of Buyer's failure to use reasonable efforts to close on or about the Closing Date, provided, further, that Buyer shall in no event be entitled to an allocation of more than 60 days with respect to past "Preferred memberships), and, in each case, up to and including the Closing Date, and in full satisfaction thereof, Seller shall pay to Buyer on the Closing Date Buyer's share of all such amounts received ("Buyer's Initiation/Fee Amount"), which amount shall be calculated in accordance with the allocations set forth on Schedule 3(a) hereof. Seller, Seller's Principals and Buyer agree that in the event that any memberships have been sold during the relevant periods indicated above by Seller other than memberships with the specific terms indicated in Schedule 3(a), Seller, Seller's Principals and Buyer shall each act in good faith to divide the fees received for such memberships among Buyer and Seller in accordance with the terms and the spirit of Schedule 3(a); (ii) Buyer and Seller agree that there are certain post-dated checks and post-dated credit card receipts held by Seller which will be deposited after the date hereof ("PostDated Post-Dated Amounts"). Seller and Buyer shall allocate these amounts in accordance with Schedule 3(a) on the Closing Date; (iii) Buyer and Seller agree that there are certain Present Members who have pre-paid their monthly membership dues for some period of time ("Pre-Paid Amounts"