Common use of Preparation of Closing Balance Sheet Clause in Contracts

Preparation of Closing Balance Sheet. As promptly as practicable, but no later than 5:00 p.m. (Mountain Time) on the 75th day after the Closing Date or such later date as Purchaser and Seller agree in writing, Purchaser will prepare or cause to be prepared a consolidated balance sheet of the Brand Companies as of the Closing Date (the “Closing Balance Sheet”), prepared in accordance with the Brand Companies’ historical practices and presented in a manner consistent with Schedule 2.05(b) to be delivered to Seller, together with a statement (the “Closing Statement”) setting forth in reasonable detail Purchaser’s calculation of (i) the Cash on Hand, (ii) the Closing Indebtedness, (iii) the Company Transaction Expenses that were not paid as of the Closing, in each case, prepared by Purchaser in good faith in accordance with the Brand Companies’ historical practices and presented in a manner consistent with the pro forma example attached hereto as Schedule 2.05(b), and (iv) the Final Net Closing Cash Consideration based on the foregoing. In the event that Purchaser does not deliver the Closing Balance Sheet and the Closing Statement within such 75-day period, Purchaser shall be conclusively deemed to have accepted the Estimated Cash on Hand, the Estimated Closing Indebtedness and the Estimated Company Transaction Expenses as the Cash on Hand, the Closing Indebtedness, and the Company Transaction Expenses, respectively. Purchaser acknowledges and agrees that, for the purposes of Seller’s review of the Closing Balance Sheet delivered by Purchaser pursuant to this Section 2.06(a), Purchaser shall afford, and shall cause the Company to afford, Seller commercially reasonable access during normal business hours to the books and records (other than privileged documents) of Purchaser, the Brand Companies and their respective Representatives.

Preparation of Closing Balance Sheet. As promptly soon as practicablepracticable following the Closing Date, but in no event later than 5:00 p.m. (Mountain Time) on the 75th day 30 days after the Closing Date or such later date as Closing, Seller shall deliver to Purchaser and Seller agree in writing, Purchaser will prepare or cause to be prepared a consolidated balance sheet of the Brand Companies Business as of the Closing Date Effective Time (the “"Closing Balance Sheet”), ") prepared in accordance with generally accepted accounting principles ("GAAP") consistently applied without giving effect to the Brand Companies’ historical practices and presented in a manner consistent with Schedule 2.05(b) transfer of assets to be delivered to Seller, together with a statement (the “Subsidiaries or the sale of Stock contemplated by this Agreement. The Closing Statement”) setting forth in reasonable detail Purchaser’s calculation of Balance Sheet or explanatory notes shall identify as separate items the following: (i) the Cash on Handvalue of the Inventory (as hereinafter defined) and (ii) the value of the FleetShare Accounts Receivable (as hereinafter defined) and all allowances for doubtful accounts relating thereto. The Closing Balance Sheet shall be accompanied by a certificate signed by an officer of Seller certifying (i) that as of December 31, 1998, $3,919,487 was the amount of the FleetShare Accounts Receivable net of all reserves, (ii) the Closing Indebtednessreserves for the FleetShare Accounts Receivable as of that date represented 1.047% of the FleetShare Accounts Receivable, (iii) the Company Transaction Expenses that were not paid as of December 31, 1998, $844,648 was the Closing, in each case, prepared by Purchaser in good faith in accordance with amount of the Brand Companies’ historical practices and presented in a manner consistent with Inventory of the pro forma example attached hereto as Schedule 2.05(b)Business, and (iv) that the Final Net Closing Cash Consideration based on Balance Sheet and the foregoingcertification of the FleetShare Accounts Receivable and the Inventory described in (i) and (iii) of this sentence: (x) were prepared in accordance with GAAP consistently applied, subject to normal recurring year end adjustments (which will not individually or in the aggregate have a Material Adverse Effect (as hereinafter defined)) and the absence of notes and (y) fairly reflects the assets and liabilities of the Business as of December 31, 1998 or the Effective Time, respectively. In the event that Purchaser does not deliver shall disagree with amounts specified on the Closing Balance Sheet for the FleetShare Accounts Receivable, reserves related thereto or the Inventory, Purchaser shall notify Seller of the matters with which it disagrees within 15 days of Purchaser's receipt of the Closing Balance Sheet and the Closing Statement parties shall use their best efforts to promptly resolve any differences. If the parties are unable to resolve any disagreements that they may have within such 75-day period30 days following Purchaser's giving of notice of its disagreement to Seller, then Seller and Purchaser shall be conclusively deemed to have accepted use the Estimated Cash on Hand, the Estimated Closing Indebtedness and the Estimated Company Transaction Expenses as the Cash on Hand, the Closing Indebtedness, and the Company Transaction Expenses, respectively. Purchaser acknowledges and agrees that, for the purposes of Seller’s review of the Closing Balance Sheet delivered by Purchaser pursuant to this Section 2.06(a), Purchaser shall afford, and shall cause the Company to afford, Seller commercially reasonable access during normal business hours to the books and records (other than privileged documents) of Purchaser, the Brand Companies and their respective Representativesdispute resolution mechanism established in Article XII."

Preparation of Closing Balance Sheet. As promptly as practicablepracticable following the Closing, but in no event later than 5:00 p.m. (Mountain Time) on the 75th day after 60 days subsequent to the Closing Date or such later date as Purchaser Date, Fiserv and Buyer shall deliver to Seller agree in writinga schedule (the “Final Schedule”) of Fiserv’s and Buyer’s calculation, Purchaser will prepare or cause to which shall be prepared derived from a consolidated balance sheet of the Brand Companies as of the Closing Date (the “Closing Balance Sheet”)) prepared using the same accounting principles, prepared in accordance with procedures, policies and methods that were used to prepare the Brand Companies’ historical practices and presented in a manner consistent with Schedule 2.05(bCompany Financial Statements, of the amount, if any, by which the Total Shareholders Equity is greater (less) to be delivered to Seller, together with a statement than $8,000,000 (the aggregate adjustment amount being hereinafter referred to as the “Final Adjustment Figure”). If Seller disputes the correctness of the Final Schedule or the Closing Statement”) setting Balance Sheet, Seller shall notify Fiserv and Buyer of its objections within 30 days after delivery of the Final Schedule and shall set forth in reasonable detail Purchaserin such notice the reason for Seller’s calculation of (i) the Cash on Hand, (ii) the Closing Indebtedness, (iii) the Company Transaction Expenses that were not paid as of the Closing, in each case, prepared by Purchaser in good faith in accordance with the Brand Companies’ historical practices and presented in a manner consistent with the pro forma example attached hereto as Schedule 2.05(b), and (iv) the Final Net Closing Cash Consideration based on the foregoingobjections. In the event that Purchaser does not If Seller fails to deliver the Closing Balance Sheet and the Closing Statement such notice within such 75-day time period, Purchaser Seller shall be conclusively deemed to have accepted the Estimated Cash on Hand, the Estimated Closing Indebtedness Final Adjustment Figure and the Estimated Company Transaction Expenses as the Cash on Hand, the Closing Indebtedness, and the Company Transaction Expenses, respectively. Purchaser acknowledges and agrees that, for the purposes of Seller’s review of the Closing Balance Sheet delivered Sheet. If Seller delivers such notice, Fiserv, Buyer and Seller shall endeavor in good faith to resolve their dispute over the determination of the Final Adjustment Figure or the Closing Balance Sheet, as the case may be, within 30 days after receipt of such notice by Purchaser pursuant Fiserv and Buyer. If they are unable to this Section 2.06(ado so within such 30-day period, the dispute shall be submitted to an audit partner experienced in the financial institution processing services industry of PricewaterhouseCoopers LLP (“PWC”) so long as PWC is independent of both Fiserv and Seller, or, if PWC shall cease to be independent of Fiserv and Seller, another independent nationally-recognized accounting firm in the United States as shall be mutually acceptable to Fiserv, Buyer and Seller (PWC or such other accounting firm, an “Independent Accountant”), Purchaser who shall affordact as an expert and not as an arbitrator, and who shall resolve the dispute within ten days. The Independent Accountant shall make a determination based solely on presentations by Fiserv and Buyer, on the one hand, and Seller, on the other hand, and not by independent review, as to (and only as to) each of the items in dispute, and shall cause be instructed that, in resolving such items in dispute, it must select a position with respect to the Company Final Adjustment Figure that is either exactly the position of Fiserv and Buyer or exactly the position of Seller or that is between such position of Fiserv and Buyer and such position of Seller. The decision of the Independent Accountant as to affordthe Final Adjustment Figure shall be final and binding upon the parties. The expense of the Independent Accountant shall be borne by Fiserv and Buyer, on the one hand, and Seller, on the other hand, in proportion to the relative difference between such party’s position and the determination of the Independent Accountant. Fiserv, Buyer and Seller commercially reasonable shall cooperate with the other party in the determination of the Final Adjustment Figure and the Closing Balance Sheet, including allowing Seller access during normal business hours after the Closing to the books and records (of the Company and to the accounting and other than privileged documents) representatives and advisors of Purchaser, the Brand Companies Company and their respective Representativesits books and records for the purposes of making such determination.

Preparation of Closing Balance Sheet. As promptly soon as practicablepracticable following the Closing Date, but in no event later than 5:00 p.m. (Mountain Time) on the 75th day 30 days after the Closing Date or such later date as Closing, Seller shall deliver to Purchaser and Seller agree in writing, Purchaser will prepare or cause to be prepared a consolidated balance sheet of the Brand Companies Business as of the Closing Date (the “"Closing Balance Sheet”), ") prepared in accordance with generally accepted accounting principles ("GAAP") consistently applied without giving effect to the Brand Companies’ historical practices and presented in a manner consistent with Schedule 2.05(b) transfer of assets to be delivered to Seller, together with a statement (the “Subsidiaries or the sale of Stock contemplated by this Agreement. The Closing Statement”) setting forth in reasonable detail Purchaser’s calculation of Balance Sheet or explanatory notes shall identify as separate items the following: (i) the Cash on Handvalue of the Inventory (as hereinafter defined) and (ii) the value of the FleetShare Accounts Receivable (as hereinafter defined) and all allowances for doubtful accounts relating thereto. The Closing Balance Sheet shall be accompanied by a certificate signed by an officer of Seller certifying (i) that as of December 31, 1998, $3,919,487 was the amount of the FleetShare Accounts Receivable net of all reserves, (ii) the Closing Indebtednessreserves for the FleetShare Accounts Receivable as of that date represented 1.047% of the FleetShare Accounts Receivable, (iii) the Company Transaction Expenses that were not paid as of December 31, 1998, $844,648 was the Closing, in each case, prepared by Purchaser in good faith in accordance with amount of the Brand Companies’ historical practices and presented in a manner consistent with Inventory of the pro forma example attached hereto as Schedule 2.05(b)Business, and (iv) that the Final Net Closing Cash Consideration based on Balance Sheet and the foregoingcertification of the FleetShare Accounts Receivable and the Inventory described in (i) and (iii) of this sentence: (x) were prepared in accordance with GAAP consistently applied, subject to normal recurring year end adjustments (which will not individually or in the aggregate have a Material Adverse Effect (as hereinafter defined)) and the absence of notes and (y) fairly reflects the assets and liabilities of the Business as of December 31, 1998 or the Closing Date, respectively. In the event that Purchaser does not deliver shall disagree with amounts specified on the Closing Balance Sheet for the FleetShare Accounts Receivable, reserves related thereto or the Inventory, Purchaser shall notify Seller of the matters with which it disagrees within 15 days of Purchaser's receipt of the Closing Balance Sheet and the Closing Statement parties shall use their best efforts to promptly resolve any differences. If the parties are unable to resolve any disagreements that they may have within such 75-day period30 days following Purchaser's giving of notice of its disagreement to Seller, then Seller and Purchaser shall be conclusively deemed to have accepted use the Estimated Cash on Hand, the Estimated Closing Indebtedness and the Estimated Company Transaction Expenses as the Cash on Hand, the Closing Indebtedness, and the Company Transaction Expenses, respectively. Purchaser acknowledges and agrees that, for the purposes of Seller’s review of the Closing Balance Sheet delivered by Purchaser pursuant to this Section 2.06(a), Purchaser shall afford, and shall cause the Company to afford, Seller commercially reasonable access during normal business hours to the books and records (other than privileged documents) of Purchaser, the Brand Companies and their respective Representativesdispute resolution mechanism established in Article XII.

Preparation of Closing Balance Sheet. As Buyer shall use its commercially reasonable efforts, as promptly as practicablepracticable following the Closing, but in no event later than 5:00 p.m. sixty (Mountain 60) days subsequent to the Effective Time, to deliver to the Representative a schedule (the “Final Schedule”) on the 75th day after the Closing Date or such later date as Purchaser and Seller agree in writingof Buyer’s calculation, Purchaser will prepare or cause to which shall be prepared derived from a consolidated balance sheet of the Brand Companies as of the Closing Date (the “Closing Balance Sheet”)) prepared using the same accounting principles, prepared in accordance with procedures, policies and methods that were used to prepare the Brand Companies’ historical practices and presented in a manner consistent with Preliminary Schedule, of the Net Working Capital. In the event the Buyer shall fail to deliver the Final Schedule 2.05(b) within such sixty-day period, then the Preliminary Schedule shall be deemed to be delivered to Sellerthe Final Schedule for all purposes hereunder. If the Representative disputes the correctness of the Final Schedule, together with a statement the Closing Balance Sheet or the calculation of Net Working Capital, the Representative shall notify Buyer of his objections in writing within twenty (20) days after delivery of the “Closing Statement”) setting Final Schedule and shall set forth in reasonable detail Purchaser’s calculation of (i) in such notice the Cash on Handreason for the Equity Holders’ objections. If the Representative fails to deliver such notice within such time period, (ii) the Closing Indebtedness, (iii) the Company Transaction Expenses that were not paid as of the Closing, in each case, prepared by Purchaser in good faith in accordance with the Brand Companies’ historical practices and presented in a manner consistent with the pro forma example attached hereto as Schedule 2.05(b), and (iv) the Final Net Closing Cash Consideration based on the foregoing. In the event that Purchaser does not deliver the Closing Balance Sheet Equity Holders and the Closing Statement within such 75-day period, Purchaser Representative shall be conclusively deemed to have accepted the Estimated Cash on Hand, the Estimated Closing Indebtedness Net Working Capital and the Estimated Company Transaction Expenses as the Cash on Hand, the Closing Indebtedness, and the Company Transaction Expenses, respectively. Purchaser acknowledges and agrees that, for the purposes of Seller’s review of the Closing Balance Sheet delivered as set forth in the Final Schedule. If the Representative delivers such notice, Buyer and the Representative shall endeavor in good faith to resolve their dispute over the determination of the Net Working Capital or the Closing Balance Sheet, as the case may be, within twenty (20) days after receipt of such notice by Purchaser pursuant Buyer. If they are unable to this Section 2.06(a)do so within such twenty (20)-day period, Purchaser the dispute shall affordbe submitted to KPMG LLP (the “Independent Accountant”) or another independent, nationally-recognized accounting firm in the United States as shall be mutually acceptable to Buyer and the Representative, who shall act as an expert and not as an arbitrator, and who shall cause resolve the Company to afford, Seller commercially reasonable access during normal business hours to the books and records (other than privileged documents) of Purchaser, the Brand Companies and their respective Representatives.dispute within thirty days. The Independent 7/0000000.1 8 -