Common use of Purchase Price Adjustment Procedures Clause in Contracts

Purchase Price Adjustment Procedures. (a) 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.

Purchase Price Adjustment Procedures. (ai) Preparation of Closing Balance Sheet. As promptly as practicable, but no Not later than 5:00 p.m. (Mountain Time) on the 75th day 60 days after the Closing Date or such later date (as Purchaser and Seller agree defined in writingArticle 2), Purchaser the Buyer will prepare or cause and deliver to be prepared the Sellers' Agent a consolidated balance sheet (the "Closing Balance Sheet") of the Brand Companies Corporation as of the Closing Date (Date, consisting of a computation of the “tangible book value of the assets of the Corporation as of the Closing Balance Sheet”)Date, prepared less the book value of the liabilities of the Corporation as of the Closing Date, all as determined in accordance with generally accepted accounting principles applied consistently with the Brand Companies’ historical practices Financial Statements (as defined in Section 3.13(a)); provided, however, that (A) based upon a physical inventory, the cost of which will be borne equally by the Buyer and presented in the Sellers, parts inventories shall be based on the value of returnable parts and new car inventories shall be valued on a manner consistent with Schedule 2.05(bfirst-in, first-out (FIFO) basis without taking into account the tax effect of such FIFO basis, (B) the value of the used vehicles inventory of the Corporation shall be as mutually agreed to by the Buyer and the Sellers based upon a physical inventory to be delivered to Seller, together with a statement (conducted jointly by the “Closing Statement”) setting forth in reasonable detail Purchaser’s calculation of (i) Sellers and the Cash Buyer on Hand, (ii) the Closing IndebtednessDate or the Business Day immediately preceding the Closing Date, which inventory shall be conducted for the Sellers by the Seller's Agent and for the Buyer by Xxxxx Xxxxx Xxxxx, and (iiiC) the Company Transaction Expenses that were not paid there shall be included such reserves and/or write-offs for doubtful accounts receivable and bad debts and for damaged, spoiled, obsolete or slow-moving inventory 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 shall be consistent with the pro forma example attached hereto as Schedule 2.05(b), and (iv) the Final Net Closing Cash Consideration based Corporation's past year-end practices. The tangible net book value reflected on the foregoing. In the event that Purchaser does not deliver the Closing Balance Sheet and is hereinafter called the Closing Statement "Net Book Value". If 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 30 days following delivery of the Closing Balance Sheet delivered by Purchaser pursuant to this Section 2.06(a(or the next Business Day if such 30th day is not a Business Day), Purchaser the Sellers' Agent has not given the Buyer notice of the Sellers' objection to the computation of the Net Book Value as set forth in the Closing Balance Sheet (such notice to contain a statement in reasonable detail of the nature of the Sellers' objection), then the Net Book Value reflected in the Closing Balance Sheet will be deemed mutually agreed by the Buyer and the Sellers. If the Sellers' Agent shall affordhave given such notice of objection in a timely manner, then the issues in dispute will be submitted to a "Big Six" accounting firm mutually acceptable to the Buyer and the Sellers' Agent (the "Accountants") for resolution. If issues in dispute are submitted to the Accountants for resolution, (1) each party will furnish to the Accountants such workpapers and other documents and information relating to the disputed issues as the Accountants may request and are available to the party or its subsidiaries (or its independent public accountants), and shall cause will be afforded the Company opportunity to afford, Seller commercially reasonable access during normal business hours present to the books Accountants any material relating to the determination and records to discuss the determination with the Accountants; (other than privileged documents2) the Accountants will be instructed to determine the Net Book Value based upon their resolution of Purchaserthe issues in dispute; (3) such determination by the Accountants of the Net Book Value, as set forth in a notice delivered to both parties by the Brand Companies Accountants, will be binding and their respective Representatives.conclusive on the parties;

Purchase Price Adjustment Procedures. (a) Preparation On August 15, 2002 (the "Reconciliation Date"), the Buyer shall cause its accountants to prepare a schedule (the "Schedule") showing the amount of Closing Balance Sheetthe Positive Usage Adjustment or the Negative Usage Adjustment, as the case may be, determined as provided in Section 3.1 above. As promptly soon as practicable, but in no event later than 5:00 p.m. twenty-one (Mountain Time21) days following the Reconciliation Date, Buyer shall deliver the Schedule to Seller. Seller shall have until fifteen (15) days following receipt of the Schedule from Buyer, to present in writing to Buyer any objections Seller may have to the matters set forth therein ("Seller's Objections"), which objections shall be set forth in reasonable detail. If Buyer does not receive such Seller's Objections on or before the 75th fifteenth (15) day after following the Closing Date receipt by the Seller of such Schedule, the Positive Usage Adjustment or the Negative Usage Adjustment, as the case may be, shall be deemed accepted and approved by Seller. If the Seller delivers Seller's Objections during such later date fifteen (15) day period, Buyer's and Seller's respective accounting firms shall attempt to resolve the matters in dispute and, if resolved, such firms shall send a joint notice to Buyer and Seller stating the manner in which the dispute was resolved. If a dispute cannot be resolved by Buyer and Seller or by their respective accounting firms prior to forty-five (45) days following the Reconciliation Date, such dispute shall be submitted to a third accounting firm mutually chosen by the Buyer's and Seller's accounting firms, which firm shall make a final and binding determination as Purchaser to such matter or matters. The third accounting firm shall send its written determination to Buyer, Seller and their respective accounting firms on or before the sixtieth day following the Reconciliation Date. Buyer and Seller agree to cooperate with each other and each other's representatives in writingorder that the Positive Usage Adjustment or the Negative Usage Adjustment, Purchaser will prepare as the case may be, may be timely performed and that any disputes may be resolved. The fees of Seller's accounting firm shall be paid by Seller, the fees of Buyer's accounting firm shall be paid by Buyer and the fee of any third accounting firm shall be paid one‑half by Buyer and one‑half by Seller. The amount reflected as the Positive Usage Adjustment or cause the Negative Usage Adjustment, as the case may be, shall be referred to be prepared a consolidated balance sheet herein as the "Reconciliation Amount." The completion 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 procedures set 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 above shall be conclusively deemed referred 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"Reconciliation Procedures."

Purchase Price Adjustment Procedures. (a) Preparation of Closing Balance Sheet. As promptly as practicablepracticable after the Closing, but in no event later than 5:00 p.m. thirty (Mountain Time30) days after the Closing, the Buyer shall notify Seller in writing (the “Post-Closing Statement”) of its determination of any proposed adjustments to the Purchase Price under Sections 2.6(a)(ii)(B), (iii), (iv), (v), (iv), (vii) and (viii) (if any, the “Buyer Adjustment Amounts”). A representative of Seller shall have the right to observe the process of preparing the Post-Closing Statement and determining the Buyer Adjustment Amounts set forth on the 75th day after Post-Closing Statement, and shall have access to all work papers used in such determination. If Seller provides written notice to the Buyer that Seller agrees to the Buyer Adjustment Amounts, or within fifteen (15) days following delivery of the Post-Closing Date or Statement (the “Dispute Notice Period”), Seller does not object in writing to the Buyer Adjustment Amounts set forth on the Post-Closing Statement, then the Buyer Adjustment Amounts shall become final, binding and conclusive as computed on such later date as Purchaser Post-Closing Statement, and the Purchase Price shall be adjusted accordingly. If Seller does object to the Adjustment Amounts within the Dispute Notice Period by delivering written notice of such objection (a “Dispute Notice”) to Buyer of any dispute Seller has with respect to the Buyer Adjustment Amounts, then the Buyer and Seller shall negotiate in good faith and attempt to resolve their disagreement for a period of fifteen (15) days following delivery of the Dispute Notice. The Dispute Notice must contain the amount of each of the adjustment amounts to the Purchase Price under Sections 2.6(a)(ii)(B), (iii), (iv), (v), (vi), (vii) and (viii) that Seller believes should have been set forth on the Post-Closing Statement (the “Seller Adjustment Amounts”), must describe in reasonable detail the items contained in the Post-Closing Statement that Seller disputes, the basis for any such disputes and documentation supporting the reason for such dispute. Any items not disputed in the Dispute Notice will be deemed to have been accepted by Seller, and any adjustment to the Purchase Price that can be made with respect to such undisputed items shall be made accordingly. Furthermore, if in the course of such negotiations between Buyer and Seller, Buyer and Seller agree on the final, binding and conclusive adjustment amounts to the 51267463.5 Purchase Price under Sections 2.6(a)(ii)(B), (iii), (iv), (v), (vi), (vii) and (viii), then the Purchase Price shall be adjusted accordingly. Should such negotiations not result in writingan agreement on the final, Purchaser will prepare or cause binding and conclusive adjustment amounts to the Purchase Price under Sections 2.6(a)(ii)(B), (iii), (iv), (v), (vi), (vii) and (viii) within fifteen (15) days after the date of the Dispute Notice, then the remaining disputed matters shall be submitted to the Bankruptcy Court to be prepared a consolidated balance sheet of the Brand Companies as of the Closing Date (the “Closing Balance Sheet”), prepared resolved in accordance with the Brand Companies’ historical practices terms and presented conditions set forth in a manner consistent with Schedule 2.05(b) this Section 2.6. The scope of the disputes to be delivered to Seller, together with a statement (resolved by 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 Bankruptcy Court shall be conclusively deemed limited to have accepted the Estimated Cash on Hand, unresolved items in the Estimated Closing Indebtedness and Dispute Notice. If 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 Purchase Price is decreased pursuant to this Section 2.06(a)2.6, Purchaser shall afford, and then the Escrow Agent shall cause to be released to Buyer the Company to afford, Seller commercially reasonable access during normal business hours amount of such reduction to the books Purchase Price out of the Escrow Cash Component within ten (10) days of such adjustment amount becoming final, binding and records (other than privileged documents) of Purchaserconclusive under this Section 2.6(b). If, however, the Brand Companies and their respective RepresentativesPurchase Price is increased pursuant to this Section 2.6, then the Escrow Agent shall continue to hold the entirety of the Escrow Cash Component until expiration of the time period set forth in Section 3.5(c) pursuant to the terms of the Escrow Agreement.