Common use of Post-Closing Payment Clause in Contracts

Post-Closing Payment. (i) As promptly as practicable after the end of the calendar month in which the Deemed Closing Date occurs, Purchaser will post all entries and close Company's books as of the end of such month. Financial statements for Company as of the Deemed Closing Date will be prepared based upon the assumption that Company's profit and loss for the month in which the Deemed Closing Date occurs will be allocated between Purchaser and Stockholders based upon the number of days in the month that each owned or is deemed to have owned the Company Stock. Purchaser's first day of ownership of the Company Stock will be the Closing Date, unless the Closing does not occur by December 31, 1997, in which case Purchaser's first day of ownership will be deemed to be January 1, 1997. ----------------------- (1) Expressed as a percentage of the Stock Component. (ii) As promptly as practicable following the preparation of Company's financial statements as of the Deemed Closing Date, and in no event later than the last day of the month next following the month in which the Deemed Closing Date occurs, Purchaser shall prepare and submit to Stockholders a schedule setting forth the Company Operating Profit for the period beginning on January 1, 1997 and ending on either (aa) the date preceding the Closing Date or (bb) if the Closing does not occur by December 31, 1997, then December 31, 1997 (the "Measurement Period"), the Distributable Cash generated during the Measurement Period and the Restricted Payments made by Company to Stockholders during the Measurement Period (the "Cash Report"). Representative of Stockholders shall have access to Company's books and records in order to verify the accuracy of the Cash Report. The parties shall endeavor to resolve any disagreements relating to the Cash Report by the end of the second calendar month following the month in which the Deemed Closing Date occurs. If all disagreements relating to the Cash Report cannot be resolved by the parties, all matters in dispute (collectively, the "Disputed Matter") shall be resolved by arbitration as set forth in Section 2.4(iii). (iii) Any Disputed Matter shall be promptly submitted to and reviewed by Deloitte & Touche LLP, or other nationally recognized independent accounting firm mutually acceptable to Stockholders and Purchaser ("Arbitrator"). The Arbitrator shall consider only the Disputed Matter and shall act promptly to resolve in writing the Disputed Matter. The Arbitrator's decision with respect to the Disputed Matter shall be final and binding on Stockholders and Purchaser. Stockholders and Purchaser shall each be responsible for and pay one-half of the fees and expenses of the Arbitrator. Each party shall be responsible for and pay its own expenses incurred in connection with the resolution of any Disputed Matter. (iv) As promptly as practicable following the first to occur of (x) an agreement between Purchaser and Stockholders with respect to the accuracy of the Cash Report or (y) a decision by the Arbitrator with respect to the appropriate figures for inclusion in the Cash Report (in either event, the "Final Cash Report"), the following action shall be taken: (1) If the amount of Distributable Cash generated during the Measurement Period (as reflected in the Final Cash Report) exceeds the aggregate Restricted Payments made to Stockholders during the Measurement Period (as reflected in the Final Cash Report), the excess, together with simple interest thereon from the Closing Date at the Agreed Rate (calculated on the basis of a 365-day year), shall be promptly remitted by Purchaser to Stockholders on a pro rata basis; or (2) If the aggregate Restricted Payments made to Stockholders during the Measurement Period (as reflected in the Final Cash Report) exceeds the amount of Distributable Cash generated during the Measurement Period (as reflected in the Final Cash Report), the excess, together with simple interest thereon from the Closing Date at the Agreed Rate (calculated on the basis of a 365-day year), shall be promptly remitted by Stockholders to Purchaser. The obligations of Stockholders to remit such funds shall be joint and several. (v) Stockholders have filed a request with the IRS for a tax refund in respect of Company's 1996 tax year. To the extent that such refund is not received by Company prior to the preparation of the Cash Report but is received prior to the payment of the funds contemplated by Section 2.4(iv), the Cash Report or Final Cash Report, as the case may be, shall be amended to include the amount of such refund in the amount of Distributable Cash generated during the Measurement Period as reflected thereon. In the event that the foregoing refund is received by Company subsequent to the payment of the funds contemplated by Section 2.4(iv), Purchaser shall remit such refund pro rata to Stockholders promptly, but in no event later than five days after its receipt.

Post-Closing Payment. (i) As promptly as practicable Within 10 days after the end last Inventory -------------------- Date, Merchant shall deliver to Agent a statement of the calendar month in which the Deemed Closing Date occurs, Purchaser will post all entries and close Company's books as aggregate amount of the end Cost Value of such month. Financial statements for Company as of the Deemed Closing Date will be prepared based upon the assumption that Company's profit and loss for the month in which the Deemed Closing Date occurs will be allocated between Purchaser and Stockholders based upon the number of days all Saleable Inventory included in the month that Inventory Taking determined in accordance with Sections 5.1, 5.2 and 5.3 plus the Cost Value of ---- all Saleable Inventory subject to Gross Rings at each owned or is deemed to have owned Store between the Company Stock. Purchaser's first day of ownership of Sale Commencement Date and the Company Stock will be the Closing Date, unless the Closing does not occur by December 31, 1997, in which case Purchaser's first day of ownership will be deemed to be January 1, 1997. ----------------------- (1) Expressed as a percentage of the Stock Component. (ii) As promptly as practicable following the preparation of Company's financial statements as of the Deemed Closing Date, and in no event later than the last day of the month next following the month in which the Deemed Closing Inventory Date occurs, Purchaser shall prepare and submit to Stockholders a schedule setting forth the Company Operating Profit for the period beginning on January 1, 1997 and ending on either (aa) the date preceding the Closing Date or (bb) if the Closing does not occur by December 31, 1997, then December 31, 1997 at such Store (the "Measurement PeriodClosing Merchandise ------------------- Inventory"), together with Merchant's good faith determination of the Distributable Cash generated during Post- --------- Closing Payment. During the Measurement Period period immediately following the Agent's receipt of such Closing Merchandise Inventory and until the Restricted Payments made Post-Closing Payment is finally determined pursuant to this Section 5.4, the representatives and agents designated by Company Agent shall be permitted to Stockholders during the Measurement Period (the "Cash Report"). Representative of Stockholders shall have access to Companyreview Merchant's books and records in order to verify the accuracy of the Cash Report. The parties shall endeavor to resolve any disagreements relating to the Cash Report by the end of the second calendar month following the month in which the Deemed Closing Date occurs. If all disagreements relating to the Cash Report cannot be resolved by the parties, all matters in dispute (collectively, the "Disputed Matter") shall be resolved by arbitration as set forth in Section 2.4(iii). (iii) Any Disputed Matter shall be promptly submitted to and reviewed by Deloitte & Touche LLP, or other nationally recognized independent accounting firm mutually acceptable to Stockholders and Purchaser ("Arbitrator"). The Arbitrator shall consider only the Disputed Matter and shall act promptly to resolve in writing the Disputed Matter. The Arbitrator's decision with respect to the Disputed Matter shall be final and binding on Stockholders and Purchaser. Stockholders and Purchaser shall each be responsible for and pay one-half of the fees and expenses of the Arbitrator. Each party shall be responsible for and pay its own expenses incurred in connection with the resolution of any Disputed Matter. (iv) As promptly as practicable following the first to occur of (x) an agreement between Purchaser and Stockholders with respect to the accuracy of the Cash Report or (y) a decision by the Arbitrator with respect to the appropriate figures for inclusion in the Cash Report (in either event, the "Final Cash Report"), the following action shall be taken: (1) If the amount of Distributable Cash generated during the Measurement Period (as reflected in the Final Cash Report) exceeds the aggregate Restricted Payments made to Stockholders during the Measurement Period (as reflected in the Final Cash Report), the excess, together with simple interest thereon from the Closing Date at the Agreed Rate (calculated on the basis of a 365-day year), shall be promptly remitted by Purchaser to Stockholders on a pro rata basis; or (2) If the aggregate Restricted Payments made to Stockholders during the Measurement Period (as reflected in the Final Cash Report) exceeds the amount of Distributable Cash generated during the Measurement Period (as reflected in the Final Cash Report), the excess, together with simple interest thereon from the Closing Date at the Agreed Rate (calculated on the basis of a 365-day year), shall be promptly remitted by Stockholders to Purchaser. The obligations of Stockholders to remit such funds shall be joint and several. (v) Stockholders have filed a request with the IRS for a tax refund in respect of Company's 1996 tax year. To the extent that such refund is not received by Company prior working papers related to the preparation of the Cash Report but is received Closing Merchandise Inventory and determination of the Post-Closing Payment. The Closing Merchandise Inventory and Merchant's determination of the Post-Closing Payment shall become final and binding upon the parties five days after Agent's receipt thereof (the "Initial Settlement Date"), unless Agent gives written notice to Merchant of its ----------------------- disagreement ("Notice of Disagreement") prior to such date. Any Notice of ---------------------- Disagreement shall specify in reasonable detail the payment nature of the funds contemplated by Section 2.4(iv), the Cash Report or Final Cash Report, as the case may be, shall be amended to include the amount any disagreement so asserted. If a timely Notice of such refund in the amount of Distributable Cash generated during the Measurement Period as reflected thereon. In the event that the foregoing refund Disagreement is received by Company subsequent Merchant, then the Closing Merchandise Inventory and the determination of the Post-Closing Payment (as revised in accordance with clause (i) or (ii) below) shall become final and binding upon the parties on the earliest of (i) the date the parties hereto resolve in writing any differences they have with respect to the payment matters specified in the Notice of Disagreement or (ii) the funds contemplated date all matters in dispute are finally resolved in writing by the Bankruptcy Court. During the 10 days following delivery of a Notice of Disagreement, Agent and the Merchant shall seek in good faith to resolve in writing any differences which they may have with respect to the matters specified in the Notice of Disagreement. During such period, a representative appointed by Merchant shall be permitted to review the Agent's working papers relating to the Notice of Disagreement. At the end of such 10-day period, Agent and the Merchant shall submit to the Bankruptcy Court for review and resolution all matters which remain in dispute which were included in the Notice of Disagreement, and the Bankruptcy Court shall make a final determination of Closing Merchandise Inventory and the Post-Closing Payment in accordance with the guidelines and procedures set forth in this Agreement. The Closing Merchandise Inventory and the Post-Closing Payment as determined in accordance with this Section 2.4(iv), Purchaser 5.4 shall remit such refund pro rata become final and binding on the parties on the date the Bankruptcy Court delivers its final resolution to Stockholders promptly, but the parties. Agent and Merchant shall each bear their own fees and expenses in no event later than five days after its receiptconnection with the Bankruptcy Court's resolution.

Post-Closing Payment. (ia) As promptly as practicable Within 60 days after the end of the calendar month in which the Deemed Closing Date occurs, Purchaser will post all entries and close Company's books as of the end of such month. Financial statements for Company as of the Deemed Closing Date will be prepared based upon the assumption that Company's profit and loss for the month in which the Deemed Closing Date occurs will be allocated between Purchaser and Stockholders based upon the number of days in the month that each owned or is deemed to have owned the Company Stock. Purchaser's first day of ownership of the Company Stock will be the Closing Date, unless the Closing does not occur by December 31, 1997, in which case Purchaser's first day of ownership will be deemed to be January 1, 1997. ----------------------- (1) Expressed as Stockholder shall prepare a percentage consolidated balance sheet of the Stock Component. (ii) As promptly as practicable following Company and the preparation of Company's financial statements Subsidiaries as of the Deemed Closing Date, and in no event later than the last day of the month next following the month in which the Deemed Closing Date occurs, Purchaser shall prepare and submit to Stockholders a schedule setting forth the Company Operating Profit for the period beginning on January 1, 1997 and ending on either (aa) the date preceding the Closing Date or (bb) if the Closing does not occur by December 31, 1997, then December 31, 1997 (the "Measurement Period"), the Distributable Cash generated during the Measurement Period and the Restricted Payments made by Company to Stockholders during the Measurement Period (the "Cash Report"). Representative of Stockholders shall have access to Company's books and records in order to verify the accuracy of the Cash Report. The parties shall endeavor to resolve any disagreements relating to the Cash Report by the end of the second calendar month following the month in which the Deemed Closing Date occurs. If all disagreements relating to the Cash Report cannot be resolved by the parties, all matters in dispute (collectively, the "Disputed Matter") shall be resolved by arbitration as set forth in Section 2.4(iii).time (iiib) Any Disputed Matter shall be promptly submitted to and reviewed by Deloitte & Touche LLP, or other nationally recognized independent accounting firm mutually acceptable to Stockholders and Purchaser ("Arbitrator"). The Arbitrator shall consider only the Disputed Matter and shall act promptly to resolve in writing the Disputed Matter. The Arbitrator's decision with respect to the Disputed Matter shall be final and binding on Stockholders and Purchaser. Stockholders and Purchaser shall each be responsible for and pay one-half of the fees and expenses of the Arbitrator. Each party shall be responsible for and pay its own expenses incurred in connection with the resolution of any Disputed Matter. (iv) As promptly as practicable following the first to occur of (x) an agreement between Purchaser and Stockholders with respect to the accuracy of the Cash Report or (y) a decision by the Arbitrator with respect to the appropriate figures for inclusion in the Cash Report (in either event, the "Final Cash Report"), the following action shall be taken: (1) If the amount of Distributable Cash generated during the Measurement Period (as reflected in the Final Cash Report) exceeds the aggregate Restricted Payments made to Stockholders during the Measurement Period (as reflected in the Final Cash Report), the excess, together with simple interest thereon from the Closing Date at the Agreed Rate (calculated on the basis of a 365-day year), shall be promptly remitted by Purchaser to Stockholders on a pro rata basis; or (2) If the aggregate Restricted Payments made to Stockholders during the Measurement Period (as reflected in the Final Cash Report) exceeds the amount of Distributable Cash generated during the Measurement Period (as reflected in the Final Cash Report), the excess, together with simple interest thereon from the Closing Date at the Agreed Rate (calculated on the basis of a 365-day year), shall be promptly remitted by Stockholders to Purchaser. The obligations of Stockholders to remit such funds shall be joint and several. (v) Stockholders have filed a request with the IRS for a tax refund in respect of Company's 1996 tax year. To the extent that such refund is not received by Company prior to During the preparation of the Cash Report but Closing Date Balance Sheet by the Stockholder as provided in Section 1.8(a) hereof, the Purchaser shall (i) provide the Stockholder and its representatives with reasonable access to all relevant books, records, work papers and employees of the Company, (ii) cooperate with the Stockholder and its representatives, including the provision of all information necessary or useful in the preparation of the Closing Date Balance Sheet, and (iii) be entitled to observe and review the preparation of the Closing Date Balance Sheet and the audit, including KPMG's work papers, with full access to KPMG during such audit, which review shall not constitute any approval of or acquiescence in the Closing Date Balance Sheet on the part of the Purchaser. (c) In the event that the Closing Date Book Value is received prior greater than $41,309,068 (which amount equals total assets less total liabilities as shown on the unaudited consolidated balance sheet of the Company and the Subsidiaries as at June 30, 2000, which balance sheet is included in Schedule 2.6 hereto), then the Purchaser shall pay to the payment of Stockholder an amount equal to the funds contemplated by Section 2.4(iv), the Cash Report or Final Cash Report, as the case may be, shall be amended to include the amount of such refund in the amount of Distributable Cash generated during the Measurement Period as reflected thereondifference. In the event that the foregoing refund Closing Date Book Value is received by Company subsequent less than the $41,309,068, then the Stockholder shall pay to the Purchaser an amount equal to the difference. (d) In the event that the Purchaser does not disagree with the Closing Date Balance Sheet pursuant to Section 1.8(e) hereof, then the payment to be made pursuant to Section 1.8(c) shall be made in cash by wire transfer of immediately available funds on the forty-fifth business day after the delivery of the funds contemplated Closing Date Balance Sheet as provided in Section 1.8(a). (e) In the event that the Purchaser disagrees with the Closing Balance Sheet, it shall advise the Stockholder within forty-five business days after the delivery of the Closing Balance Sheet as provided in Section 1.8(a), specifying the nature of such disagreement, the reason therefor and its calculation of the payment it believes is required by Section 2.4(iv1.8(c), . The Stockholder and the Purchaser shall remit such refund pro rata then select a mutually acceptable firm of certified independent public accountants of national reputation (the "Independent Accountants") to Stockholders promptly, but in no event later than five days after its receiptresolve the disagreement and to determine the amount of the payment required by Section 1.8(c) (the "Revised Amount"). The Independent Accountants shall deliver their determination of the Revised Amount to the Stockholder (f) The fees and expenses of the Independent Accountants shall be shared equally by the Stockholder and the Purchaser.