Common use of Statement of Net Assets Clause in Contracts

Statement of Net Assets. (a) RVI shall prepare a special-purpose statement of net assets of RVI, exclusive of RVI’s investment in DSW, as of January 29, 2011 (the “Statement”), in accordance with the basis of presentation set forth in Schedule 5.13(a) (the “Basis of Presentation”), and shall engage a nationally recognized accounting firm (the “Auditor”) to deliver a report on the Statement (the “Report”). RVI shall present a draft of the Statement to DSW no later than March 31, 2011. DSW shall notify RVI, within two (2) business days after DSW’s receipt of that draft, regarding whether DSW has any objection to the draft, and may base any such objection only on the draft’s failure to comply with the Basis of Presentation. If DSW so delivers notice of any such objection, RVI and DSW shall begin efforts to resolve the objection immediately upon DSW’s delivery of that notice, and shall cooperate in good faith and use their best efforts to resolve that objection as soon as is practicable. (b) DSW shall execute an agreement with the Auditor with respect to the Statement and Report in the form thereof required by the Auditor, and shall provide a copy of that agreement to RVI. DSW shall advise RVI immediately upon DSW’s receipt of any communication from the Auditor concerning the Statement or Report, shall afford RVI an opportunity to participate in any response thereto by or on behalf of DSW, and shall make any such response as soon as is practicable, subject only to the availability of RVI personnel for that purpose. DSW shall not initiate any communication with the Auditor regarding the Statement or Report without RVI’s prior written approval or participation. (c) RVI shall prepare a schedule (the “Cash Schedule”) listing all cash receipts and all cash disbursements of RVI (other than those in DSW bank accounts) that individually exceeded or equaled $100,000 from January 30, 2011 through the month end prior to the Closing (“RVI’s Significant Cash Transactions”). The Cash Schedule of RVI’s Significant Cash Transactions shall list the date of the transaction, whether it is a disbursement or a receipt, the amount, and the payee if it is a disbursement. RVI shall execute an engagement letter with the Auditor to deliver a report on the Cash Schedule (the “Agreed Upon Procedures Report”). RVI shall present a draft of the Cash Schedule to DSW no later than two weeks after the month end prior to the Closing. DSW shall notify RVI, within two (2) business days after DSW’s receipt of that draft, regarding whether DSW has any objection to the draft, which objections may be based only on the failure of the draft Cash Schedule to have been prepared in accordance this Section 5.13(c). If DSW so delivers notice of any such objection, RVI and DSW shall begin efforts to resolve the objection immediately upon DSW’s delivery of that notice, and shall cooperate in good faith and use their best efforts to resolve that objection as soon as is practicable. (d) DSW shall execute the engagement letter referred to in Section 5.13(c) if the Auditor so requests. DSW shall advise RVI immediately upon DSW’s receipt of any communication from the Auditor concerning the Cash Schedule or Agreed Upon Procedures Report, shall afford RVI an opportunity to participate in any response thereto by or on behalf of DSW, and shall make any such response as soon as is practicable, subject only to the availability of RVI personnel for that purpose. DSW shall not initiate any communication with the Auditor regarding the Cash Schedule or the Agreed Upon Procedures Report without RVI’s prior written approval or participation.

Statement of Net Assets. (a) RVI As promptly as practicable after the Closing Date, but in any case not later than 60 days thereafter, Sellers shall prepare cause to be prepared and delivered to Purchaser a special-purpose statement of net assets of RVI, exclusive of RVI’s investment in DSW, the Net Assets (as of January 29, 2011 hereinafter defined) (the “Statement”), "Statement of Net Assets") in accordance with the basis following guidelines (the date on which such Statement of presentation Net Assets is delivered by Sellers to Purchaser is referred to herein as the "Delivery Date"): (a) the Statement of Net Assets shall be in the form attached as EXHIBIT B and shall set forth in Schedule 5.13(a) the net book values of the Assets and Assumed Liabilities as of the Closing Date (the “Basis of Presentation”"Net Assets"), which net book values shall be (i) derived from and shall engage a nationally recognized in accordance with the books and records of the Business, determined in accordance with United States generally accepted accounting firm principles consistently applied during the periods involved (the “Auditor”) to deliver a report "GAAP"), as modified by those principles set forth on the Statement (of Methods for Determining Net Assets, attached hereto as EXHIBIT C, including without limitation, the “Report”)principle that Non-Returnable Inventory shall be excluded from the Statement of Net Assets. RVI shall present a draft Non-Returnable Inventory means inventory that as of the Statement to DSW no later than March 31, 2011. DSW shall notify RVI, within two (2) business days after DSW’s receipt of that draft, regarding whether DSW has Closing Date is not listed on any objection to the draft, and may base any such objection only on the draft’s failure to comply with the Basis of Presentation. If DSW so delivers notice of any such objection, RVI and DSW shall begin efforts to resolve the objection immediately upon DSW’s delivery of that notice, and shall cooperate in good faith and use their best efforts to resolve that objection as soon as is practicable.current vendor list; (b) DSW shall execute an agreement with the Auditor with respect to the Statement and Report in the form thereof required of Net Assets shall have been audited by the AuditorPrice Waterhouse LLP utilizing its Toronto, Ontario office ("PW Toronto") and shall provide a copy of that agreement to RVI. DSW shall advise RVI immediately upon DSW’s receipt of any communication from the Auditor concerning the Statement or Report, shall afford RVI an opportunity to participate in any response thereto be accompanied by or on behalf of DSW, and shall make any such response as soon as is practicable, subject only to the availability of RVI personnel for that purpose. DSW shall not initiate any communication with the Auditor regarding the Statement or Report without RVI’s prior written approval or participation.their report thereon; (c) RVI shall prepare a schedule (the “Cash Schedule”) listing all cash receipts and all cash disbursements of RVI (other than those in DSW bank accounts) that individually exceeded or equaled $100,000 from January 30, 2011 through the month end prior to the Closing (“RVI’s Significant Cash Transactions”). The Cash Schedule of RVI’s Significant Cash Transactions shall list the date of the transaction, whether it is a disbursement or a receipt, the amount, and the payee if it is a disbursement. RVI shall execute an engagement letter with the Auditor to deliver a report inventories reflected on the Cash Schedule Statement of Net Assets shall be valued at the lower of cost or market consistent with past practice with cost determined under the first-in, first-out (the “Agreed Upon Procedures Report”). RVI shall present a draft of the Cash Schedule to DSW no later than two weeks after the month end prior to the Closing. DSW shall notify RVI, within two (2"FIFO") business days after DSW’s receipt of that draft, regarding whether DSW has any objection to the draft, which objections may be based only on the failure of the draft Cash Schedule to have been prepared in accordance this Section 5.13(c). If DSW so delivers notice of any such objection, RVI and DSW shall begin efforts to resolve the objection immediately upon DSW’s delivery of that notice, and shall cooperate in good faith and use their best efforts to resolve that objection as soon as is practicable.valuation method; and (d) DSW Purchaser and the Rochester office of Price Waterhouse LLP ("PW Rochester") shall execute have the engagement letter referred right to observe all steps (including any physical inventory) taken by Sellers in connection with the preparation of the Statement of Net Assets and to review all work papers and procedures relating thereto and shall have complete access to all books and records of the Business during normal business hours relevant to the preparation of the Statement of Net Assets. Upon receipt by Purchaser of the Statement of Net Assets, Purchaser and PW Rochester shall have 30 days to review the Statement of Net Assets (the "Review Period"). If Purchaser disputes the Statement of Net Assets so delivered by Sellers, Purchaser shall, on or prior to the last day of the Review Period, prepare and submit to Sellers a notice of dispute (a "Notice of Dispute") which shall set forth Purchaser's proposed Statement of Net Assets and shall specifically enumerate the items and calculations objected to in the Statement of Net Assets prepared by Purchaser (the "Disputed Items"). If Purchaser fails to deliver a Notice of Dispute prior to the last day of the Review Period, the Statement of Net Assets delivered by Sellers to Purchaser pursuant to this Section 5.13(c) if 2.3 shall be the Auditor so requestsfinal Statement of Net Assets for purposes of this Agreement. DSW shall advise RVI immediately upon DSW’s Upon receipt of any communication from the Auditor concerning the Cash Schedule or Agreed Upon Procedures Reporta Notice of Dispute, shall afford RVI an opportunity Sellers and Purchaser will, for a period of 20 days following delivery of such Notice of Dispute, seek in good faith to participate in any response thereto by or resolve all Disputed Items and agree on behalf a Statement of DSW, and shall make any such response as soon as is practicable, subject only to the availability of RVI personnel for that purpose. DSW shall not initiate any communication with the Auditor regarding the Cash Schedule or the Agreed Upon Procedures Report without RVI’s prior written approval or participationNet Assets.