Common use of Closing Date Balance Sheet Clause in Contracts

Closing Date Balance Sheet. (a) Prior to Closing, the parties will cooperate in preparing a balance sheet dated as of the Closing Date (the "Closing Date Balance Sheet") reflecting the amount by which the value of the Purchased Assets as of the Closing Date exceeds the Assumed Liabilities as of the Closing Date (the "Net Value"). Purchaser and Seller agree that the Closing Date Balance Sheet will be prepared in a manner consistent with the balance sheet as of June 28, 1997 attached hereto as Exhibit A and will reflect an update of the Preliminary Balance Sheet (as defined in Section 3.03(b) below). Purchaser and Seller will endeavor in good faith to resolve any disputes in the determination of the Net Value and the preparation of the Preliminary Balance Sheet and the Closing Date Balance Sheet. (b) Seller shall take a physical inventory (the "Closing Inventory") of the Divisions as of the last day of the most recent month that is not more than 30 days prior to the Closing Date (or such other date as Seller and Purchaser shall mutually agree) and will prepare a preliminary balance sheet as of the date of the Closing Inventory (the "Preliminary Balance Sheet") reflecting the value of the Purchased Assets and the Assumed Liabilities as of the date of the Preliminary Balance Sheet. Purchaser and its representatives will have the right to participate in the taking of the Closing Inventory. Not less than five days prior to Closing, Seller will deliver a copy of the Preliminary Balance Sheet to Purchaser for its review. Seller and Purchaser will cooperate to determine a method reasonably acceptable to each party to make adjustments to and update the Preliminary Balance Sheet for purposes of preparing the Closing Date Balance Sheet.

Closing Date Balance Sheet. Not less than one hundred and eighty ---------------------------- (a180) Prior days immediately following the Closing Date Seller shall deliver or cause to Closingbe delivered to Purchaser a true, the parties will cooperate in preparing a correct and complete consolidated balance sheet dated of the Company and its Subsidiaries as at the close of business on December 31, 2005 which has been duly audited by the firm of certified public accountants regularly engaged by the Company, which includes a determination of those liabilities identified in Schedule 3.1 hereto and which is accompanied by ------------ an unqualified opinion of such accounting firm that the Closing Balance Sheet has been prepared in accordance with GAAP (except with respect to the inclusion of those identified in Schedule 3.1 hereto) consistently applied and utilizing ------------ the same assumptions, procedures and methods as were utilized in the preparation of the Balance Sheet, setting forth each of the Company's and the Subsidiaries' Company Debt, cash and cash equivalents, and Receivables (Company Debt, cash and cash equivalents, and Receivables collectively referred to as "BALANCE SHEET ITEMS") as of the Closing Date close of business on December 31, 2005 (said balance sheet and the footnotes thereto being referred to herein as the "Closing Date Balance Sheet") reflecting the amount by which the value of the Purchased Assets as of the Closing Date exceeds the Assumed Liabilities as of the Closing Date (the "Net ValueCLOSING DATE BALANCE SHEET"). Purchaser and Seller agree that In addition, although they would not formally be reflected as liabilities on the Closing Balance Sheet under GAAP, for purposes of this Agreement the Closing Date Balance Sheet will be prepared in shall include within the liabilities section those certain liabilities of the Company or a manner consistent Subsidiary which are more particularly identified on Schedule 3.1 hereto (the liabilities reflected on the ------------ Closing Date Balance Sheet, combined with the liabilities reflected on Schedule -------- 3.1 hereto are hereafter collectively referred to as the "CLOSING DATE --- LIABILITIES"). The aggregate Accounts Receivable of the Company and the Subsidiaries reflected on the Closing Date Balance Sheet are hereinafter referred to as the "CLOSING DATE ACCOUNTS RECEIVABLE." The fees, costs and expenses of such audited balance sheet as shall be borne by Seller. Purchaser shall have a period of June 28, 1997 attached hereto as Exhibit A and will reflect an update thirty (30) days (the "OBJECTION PERIOD") after receipt of the Preliminary Closing Date Balance Sheet from Seller in which to provide written notice to Seller of any objections thereto (as defined the "OBJECTION NOTICE"), setting forth in reasonable detail the specific item of the calculation of the Balance Sheet Items or other items or matters to which each such objection relates and the specific basis for each such objection. The Closing Date Balance Sheet and the resulting Balance Sheet Items or other items or matters shall be deemed to be accepted by Purchaser, and shall become final and binding on the parties, on the later of (i) the expiration of the Objection Period without the filing of an Objection Notice or (ii) the date on which all objections have been resolved by the parties or the Reviewing Party and payment has been made, to the extent required under Section 3.03(b) below3.3 below (the "RECONCILIATION DATE"). If Purchaser ------------ gives any such Objection Notice within the Objection Period, then Purchaser and Seller will endeavor shall attempt in good faith to resolve any dispute concerning the item(s) subject to such Objection Notice. If Purchaser and Seller do not resolve all disputes arising in connection with the determination calculation of the Net Value and the preparation of the Preliminary Balance Sheet and Items and/or relating to the Closing Date Balance Sheet. Sheet within thirty (b30) Seller shall take a physical inventory (days after the "Closing Inventory") date of delivery of the Divisions as Objection Notice, which thirty (30) day period may be extended by written agreement of the last day of the most recent month that is not more than 30 days prior to the Closing Date (or such other date as Seller and Purchaser shall mutually agree) and will prepare a preliminary balance sheet (such period, as of the date of the Closing Inventory (it may be extended, the "Preliminary Balance SheetINITIAL RESOLUTION PERIOD") reflecting ), such dispute shall be resolved in accordance with the value of the Purchased Assets and the Assumed Liabilities as of the date of the Preliminary Balance Sheetprocedures set forth in Section 3.2 below. Purchaser and its representatives will have the right to participate in the taking of the Closing Inventory. Not less than five days prior to Closing, Seller will deliver a copy of the Preliminary Balance Sheet to Purchaser for its review. Seller and Purchaser will cooperate to determine a method reasonably acceptable to each party to make adjustments to and update the Preliminary Balance Sheet for purposes of preparing the Closing Date Balance Sheet.------------

Closing Date Balance Sheet. Within ninety (a90) Prior days after the Closing Date, PainCare or its Affiliate will prepare and deliver to Closing, the parties will cooperate in preparing Member a balance sheet dated of the Company as of the close of business on the Closing Date prepared in accordance with GAAP (the "“Closing Date Balance Sheet") reflecting the amount by which the value of the Purchased Assets as of the Closing Date exceeds the Assumed Liabilities as of the Closing Date (the "Net Value"”). Purchaser and Seller agree that Within six (6) days after PainCare’s delivery of the Closing Date Balance Sheet will be prepared to the Member, the Member shall, in a manner consistent with written notice to PainCare, either accept or describe in reasonable detail any proposed adjustments to the balance sheet as of June 28, 1997 attached hereto as Exhibit A and will reflect an update of the Preliminary Balance Sheet (as defined in Section 3.03(b) below). Purchaser and Seller will endeavor in good faith to resolve any disputes in the determination of the Net Value and the preparation of the Preliminary Closing Date Balance Sheet and the reasons therefore, and shall include pertinent calculations. If the Member fails to deliver notice of acceptance or objection to the Closing Date Balance Sheet within such six (6) day period, the Member shall be deemed to have accepted the Closing Date Balance Sheet. (b) Seller shall take a physical inventory (the "Closing Inventory") of the Divisions as of the last day of the most recent month that is not more than 30 days prior to the Closing Date (or such other date as Seller and Purchaser shall mutually agree) and will prepare a preliminary balance sheet as of the date of the Closing Inventory (the "Preliminary Balance Sheet") reflecting the value of the Purchased Assets and the Assumed Liabilities as of the date of the Preliminary Balance Sheet. Purchaser and its representatives will have the right to participate Except in the taking case of the Closing Inventory. Not less than five days prior a dispute with respect to Closing, Seller will deliver a copy of the Preliminary Balance Sheet to Purchaser for its review. Seller and Purchaser will cooperate to determine a method reasonably acceptable to each party to make adjustments to and update the Preliminary Balance Sheet for purposes of preparing the Closing Date Balance Sheet, within seven (7) days after delivery of the Closing Date Balance Sheet (the “Adjustment Payment Date”), the Member shall pay the Other Net Equity Adjustment to PainCare in cash. In the event that PainCare and the Member are not able to agree on the Closing Date Balance Sheet within thirty (30) days from and after the receipt by PainCare of any objections raised by the Member, then either Party shall each have the right to require that such disputed determinations be submitted to an independent certified public accountant or accounting firm that PainCare shall select, for computation or verification in accordance with the provisions of this Agreement, and the Other Net Equity Adjustment shall be paid by the Member to PainCare within five (5) days after receipt of the accountant’s computation or verification. The foregoing provisions for certified public accounting firm review shall be final and binding upon the Parties and there shall be no right of appeal from such decision. Such accounting firm’s fees and expenses for such disputed determination shall be borne by the Party whose determination has been modified by such accounting firm’s report or by all Parties in proportion to the relative amount each Party’s determination has been modified. Any payments due under this Section 3.3 shall bear interest at eight percent (8%) per annum from the Adjustment Payment Date.

Closing Date Balance Sheet. Within ninety (a90) Prior days after the Closing Date, PainCare or its Affiliate will prepare and deliver to Closing, the parties will cooperate in preparing Shareholder a balance sheet dated of the Company as of the close of business on the Closing Date prepared in accordance with GAAP (the "“Closing Date Balance Sheet") reflecting the amount by which the value of the Purchased Assets as of the Closing Date exceeds the Assumed Liabilities as of the Closing Date (the "Net Value"”). Purchaser and Seller agree that Within six (6) days after PainCare’s delivery of the Closing Date Balance Sheet will be prepared to the Shareholder, the Shareholder shall, in a manner consistent with written notice to PainCare, either accept or describe in reasonable detail any proposed adjustments to the balance sheet as of June 28, 1997 attached hereto as Exhibit A and will reflect an update of the Preliminary Balance Sheet (as defined in Section 3.03(b) below). Purchaser and Seller will endeavor in good faith to resolve any disputes in the determination of the Net Value and the preparation of the Preliminary Closing Date Balance Sheet and the reasons therefore, and shall include pertinent calculations. If the Shareholder fails to deliver notice of acceptance or objection to the Closing Date Balance Sheet within such six (6) day period, the Shareholder shall be deemed to have accepted the Closing Date Balance Sheet. (b) Seller shall take a physical inventory (the "Closing Inventory") of the Divisions as of the last day of the most recent month that is not more than 30 days prior to the Closing Date (or such other date as Seller and Purchaser shall mutually agree) and will prepare a preliminary balance sheet as of the date of the Closing Inventory (the "Preliminary Balance Sheet") reflecting the value of the Purchased Assets and the Assumed Liabilities as of the date of the Preliminary Balance Sheet. Purchaser and its representatives will have the right to participate Except in the taking case of the Closing Inventory. Not less than five days prior a dispute with respect to Closing, Seller will deliver a copy of the Preliminary Balance Sheet to Purchaser for its review. Seller and Purchaser will cooperate to determine a method reasonably acceptable to each party to make adjustments to and update the Preliminary Balance Sheet for purposes of preparing the Closing Date Balance Sheet, within seven (7) days after delivery of the Closing Date Balance Sheet (the “Adjustment Payment Date”), the Shareholder shall pay the Other Net Equity Adjustment to PainCare in cash. In the event that PainCare and the Shareholder are not able to agree on the Closing Date Balance Sheet within thirty (30) days from and after the receipt by PainCare of any objections raised by the Shareholder, then either Party shall each have the right to require that such disputed determinations be submitted to an independent certified public accountant or accounting firm that PainCare shall select, for computation or verification in accordance with the provisions of this Agreement, and the Other Net Equity Adjustment shall be paid by the Shareholder to PainCare within five (5) days after receipt of the accountant’s computation or verification. The foregoing provisions for certified public accounting firm review shall be final and binding upon the Parties and there shall be no right of appeal from such decision. Such accounting firm’s fees and expenses for such disputed determination shall be borne by the Party whose determination has been modified by such accounting firm’s report or by all Parties in proportion to the relative amount each Party’s determination has been modified. Any payments due under this Section 3.3 shall bear interest at eight percent (8%) per annum from the Adjustment Payment Date.

Closing Date Balance Sheet. (a) Prior to ClosingNot later than 60 days after the Closing Date, the parties will cooperate in preparing AACI shall cause, at its sole expense, a balance sheet dated of each of the Purchased Companies as of at the Closing Date to be prepared, which balance sheets shall be prepared in accordance with generally accepted accounting principles in a manner consistent with that of the balance sheet comprising part of the Audited Statements, and a consolidated balance sheet as at the Closing Date for all three Purchased Companies that shall reflect the three foregoing Closing Date balance sheets on a consolidated basis (the foregoing consolidated balance sheet is herein referred to as the "Closing Date Balance Sheet") reflecting the amount by which the value ). AACI shall cause each of the three Purchased Assets as of the Closing Date exceeds the Assumed Liabilities as of the Closing Date (the "Net Value"). Purchaser Company balance sheets and Seller agree that the Closing Date Balance Sheet to be delivered to the Purchaser within 60 days after the Closing Date. AACI agrees to permit the Purchaser, at its sole expense, or the Purchaser's auditors to review such balance sheets and underlying financial data during the foregoing 60 day period and the 30-day period referred to in Section 3.2(b). The Closing Date Balance Sheet shall take into account, on a pro forma basis, the adjustments contemplated by Sections 9.8 and 9.9. (b) Each Party will be prepared in receive a manner consistent with copy of the balance sheet as of June 28, 1997 attached hereto as Exhibit A Closing Date Balance Sheet not later than 60 days after the Closing Date and will reflect an update of have 30 days thereafter to review the Preliminary Balance Sheet (as defined in Section 3.03(b) below). Purchaser and Seller will endeavor in good faith to resolve any disputes in the determination of the Net Value and the preparation of the Preliminary Closing Date Balance Sheet and the underlying three balance sheets and financial data. If, within such 30 day period neither Party notifies the other that it has a disagreement with the Closing Date Balance Sheet. (b) Seller shall take a physical inventory (the "Closing Inventory") of the Divisions as of the last day of the most recent month that is not more than 30 days prior to the Closing Date (or such other date as Seller and Purchaser shall mutually agree) and will prepare a preliminary balance sheet as of the date of the Closing Inventory (the "Preliminary Balance Sheet") reflecting the value of the Purchased Assets and the Assumed Liabilities as of the date of the Preliminary Balance Sheet. Purchaser and its representatives will have the right to participate in the taking of the Closing Inventory. Not less than five days prior to Closing, Seller will deliver a copy of the Preliminary Balance Sheet to Purchaser for its review. Seller and Purchaser will cooperate to determine a method reasonably acceptable to each party to make adjustments to and update the Preliminary Balance Sheet for purposes of preparing the Closing Date Balance SheetSheet shall be conclusive and binding on the Purchaser and AACI and the Parties shall be deemed to have agreed thereto. (c) If either Party notifies the other of its disagreement with the Closing Date Balance Sheet within such period, then the Purchaser and AACI shall attempt, in good faith, to resolve their differences with respect thereto within 15 days after the receipt of the notice of disagreement by the other Party. If the Parties are unable to resolve their differences within such 15 day period, each Party will, within 5 days thereafter, nominate a partner of a nationally recognized accounting firm (other than that Party's own auditors) (a "Referee") and both Referees will, within 2 days thereafter choose a third Referee (other than a member of a nationally recognized accounting firm which acts for either Party) to resolve the dispute. The Referees will, by a majority vote taken within 10 days after their selection, choose between final and complete proposals presented by each of the Parties.

Closing Date Balance Sheet. As soon as practicable, but no later than twenty (a20) Prior to Closingdays after the Closing Date, the parties will cooperate in preparing a Seller shall prepare and deliver to the Buyer an unaudited, consolidated balance sheet dated for the Companies (which may or may not contain notes) (the “Closing Date Balance Sheet”) and a calculation of the Net Asset Value as of the close of business on the Closing Date (the "“Closing Date Net Asset Value”). The Closing Date Balance Sheet") reflecting Sheet shall be prepared in accordance with GAAP, consistently applied by the amount by which Subsidiaries. The Seller shall also make available to the value Buyer copies of the Purchased Assets all work papers and other documents and data as of the Closing Date exceeds the Assumed Liabilities as of the Closing Date (the "Net Value"). Purchaser and Seller agree that were used to prepare the Closing Date Balance Sheet will be prepared in a manner consistent with (and any items therein) and the balance sheet as of June 28, 1997 attached hereto as Exhibit A and will reflect an update of Closing Date Net Asset Value calculation. The Buyer shall have the Preliminary right to dispute the Closing Date Balance Sheet (and any items therein) and the Closing Date Net Asset Value calculation and make any proposed adjustments thereto as defined provided in Section 3.03(b) below2(b)(iv). Purchaser and If the Closing Date Net Asset Value, as finally determined in accordance with this Section 2(b), is less than $18,215,151, which amount the parties acknowledge assumes (as represented by the Seller will endeavor in good faith to resolve any disputes in Entities) that the determination aggregate amount as of September 30, 2006 of the Net Value accruals relating to workers compensation claims and other items that will be eliminated from the preparation books of the Preliminary Balance Sheet Companies and retained and assumed by the Seller Entities is approximately $2,400,000 (which items are set forth in more detail on Exhibit G, and which items, regardless of their amounts as of the Closing Date, will be eliminated from the Closing Date Balance Sheet. (b) , be retained and assumed by the Seller shall take a physical inventory (the "Closing Inventory") Entities, and will not be obligations of the Divisions as of Companies) (such shortfall being a “Net Asset Value Shortfall”), then the last day of the most recent month that is not more than 30 days prior Seller shall, subject to Section 2(b)(iv), deliver to the Closing Date Buyer cash in an amount equal to such Net Asset Value Shortfall, if any, within fifteen (or 15) days of such other date as Seller and Purchaser shall mutually agree) and will prepare a preliminary balance sheet as of the date of the Closing Inventory (the "Preliminary Balance Sheet") reflecting the value of the Purchased Assets and the Assumed Liabilities as of the date of the Preliminary Balance Sheet. Purchaser and its representatives will have the right to participate in the taking of the Closing Inventory. Not less than five days prior to Closing, Seller will deliver a copy of the Preliminary Balance Sheet to Purchaser for its review. Seller and Purchaser will cooperate to determine a method reasonably acceptable to each party to make adjustments to and update the Preliminary Balance Sheet for purposes of preparing the Closing Date Balance Sheetfinal determination.

Closing Date Balance Sheet. (a) Prior to ClosingWithin one hundred twenty (120) days following the Closing Date, the parties will cooperate in preparing Participating Partners shall prepare a balance sheet dated of Bacon & ▇▇▇▇▇▇▇ as at the close of the Closing Date business (London time) on May 31, 2002 (the "Closing Date Balance Sheet") reflecting the amount by which the value of the Purchased Assets as of the ). The Closing Date exceeds Balance Sheet shall be prepared in the Assumed Liabilities as of the following manner: (i) The Closing Date Balance Sheet shall be prepared in accordance with the accounting principles currently utilized by Bacon & ▇▇▇▇▇▇▇. (ii) The Closing Date Balance Sheet shall exclude any Excluded Liabilities and any assets retained by the "Net Value"). Purchaser and Seller agree that Continuing Partners pursuant to Article XI. (iii) The Closing Date Balance Sheet shall reflect appropriate accruals for any amounts likely to be borne by Bacon & ▇▇▇▇▇▇▇ or the Continuing Partners in respect of professional indemnity claims known about by the Continuing Partners prior to the date of the Closing Date Balance Sheet will as a result of (A) deductibles in Bacon & Woodrow's insurance with respect to such claims that have not already been paid and (B) any claims known prior to the date of the Closing Date Balance Sheet reasonably expected prior to the date of the Closing Date Balance Sheet to exceed applicable coverages or with respect to which coverage is reasonably expected to be prepared denied (to the extent payments have not already been made by Bacon & ▇▇▇▇▇▇▇ to reflect such events). (iv) The Closing Date Balance Sheet shall reflect appropriate accruals for such legal fees and other transaction expenses of Bacon & ▇▇▇▇▇▇▇ in a manner consistent connection with the balance sheet transactions contemplated hereby (including the stamp duty payable by the Continuing Partners pursuant to Section 2.11) as of June 28are to be borne by it, 1997 attached hereto excluding any amount to be borne by ▇▇▇▇▇▇ or the ▇▇▇▇▇▇ Company as Exhibit A and will reflect an update of the Preliminary Balance Sheet agreed herein. (as defined in Section 3.03(bv) below). Purchaser and Seller will endeavor in good faith With respect to resolve any disputes in the determination of the Net Value and the preparation of the Preliminary Closing Date Balance Sheet and the calculation of Closing Net Worth, except as expressly provided in Section 2.9(a)(ii) and (a)(vi), no change in accounting principles will be made from those previously utilized by Bacon & ▇▇▇▇▇▇▇. For purposes of the preceding sentence, "change in accounting principles" includes all changes in accounting principles, policies, practices, procedures or methodologies with respect to financial statements, their classification or their display (unless required by objective changes in underlying events or circumstances). (vi) With respect to preparation of the Closing Date Balance Sheet, the ▇▇▇▇▇▇ Company and Bacon & ▇▇▇▇▇▇▇ shall identify and agree upon which items of work in progress are collectable. Work in progress which the ▇▇▇▇▇▇ Company and Bacon & ▇▇▇▇▇▇▇ agree is collectable will be reflected at its full realizable value on the Closing Date Balance Sheet. To the extent the ▇▇▇▇▇▇ Company and Bacon & ▇▇▇▇▇▇▇ disagree as to whether work in progress is collectable, such work in progress shall not be reflected on the Closing Date Balance Sheet, but if and when such amounts are subsequently recovered, the ▇▇▇▇▇▇ Company shall pay such amounts to the Participating Partners. Collections will be applied to the oldest outstanding amounts except where designated by the payor to apply to a particular invoice. (b) Seller The Participating Partners shall take a physical inventory (the "Closing Inventory") of the Divisions as of the last day of the most recent month procure that is not more than 30 days prior to the Closing Date (or ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇ shall audit such other date as Seller and Purchaser shall mutually agree) and will prepare a preliminary balance sheet as of and confirm that it was prepared in accordance with the date of the Closing Inventory (the "Preliminary Balance Sheet") reflecting the value of the Purchased Assets foregoing principles, subject to customary exceptions and the Assumed Liabilities as of the date of the Preliminary Balance Sheet. Purchaser and its representatives will have the right to participate in the taking of the Closing Inventory. Not less than five days prior to Closing, Seller will deliver a copy of the Preliminary Balance Sheet to Purchaser for its review. Seller and Purchaser will cooperate to determine a method reasonably acceptable to each party to make adjustments to and update the Preliminary Balance Sheet for purposes of preparing the Closing Date Balance Sheetlanguage utilized by accounting firms.

Closing Date Balance Sheet. (a) Prior As promptly as practicable, but no later than 45 days after the Closing Date, Buyer will cause to Closing, the parties will cooperate in preparing a be prepared and delivered to Sellers an actual consolidated balance sheet dated of the Partnership and Subsidiaries as of the Closing Date (the "“Closing Date Balance Sheet"”) reflecting the amount by which the value and a certificate based on such Closing Date Balance Sheet setting forth Buyer’s good faith calculation of the Purchased Assets Working Capital. The Closing Date Balance Sheet shall (x) fairly present the consolidated financial position of the Partnership and Subsidiaries as of the Closing Date exceeds the Assumed Liabilities as of the Closing Date (the "Net Value"). Purchaser and Seller agree that the Closing Date Balance Sheet will be prepared in accordance with GAAP applied on a manner basis consistent with the balance sheet as of June 28, 1997 attached hereto as Exhibit A and will reflect an update of the Preliminary Balance Sheet (as defined those used in Section 3.03(b) below). Purchaser and Seller will endeavor in good faith to resolve any disputes in the determination of the Net Value and the preparation of the Preliminary Balance Sheet December 31, 2004 balance sheet included in the Audited Financial Statements, and (y) include line items substantially consistent with those in such December 31, 2004 balance sheet. (b) If Sellers disagree with Buyer’s calculation of the Working Capital delivered pursuant to Section 2.03(a), Sellers may, within 10 days after delivery of the documents referred to in Section 2.03(a), deliver a notice to Buyer disagreeing with such calculation which specifies Sellers’ calculation of such amount and, in reasonable detail, Sellers’ grounds for such disagreement. (c) If a notice of disagreement shall be duly delivered pursuant to Section 2.03(b), Buyer and Sellers shall, during the 15 days following such delivery, use commercially reasonable efforts to reach agreement on the disputed items or amounts in order to determine, as may be required, the amount of the Working Capital, which amount shall not be less than the amount thereof shown in Buyer’s calculation delivered pursuant to Section 2.03(a) nor more than the amount thereof shown in Sellers’ calculation delivered pursuant to Section 2.03(b). If, during such period, Buyer and Sellers are unable to reach such agreement, they shall promptly thereafter cause the audit group of a nationally recognized “Big 4” accounting firm that does not provide tax or audit services to Buyer, the Partnership Group, the Joint Ventures or any Seller (the “Accounting Referee”) promptly to review this Agreement and the disputed items or amounts for the purpose of calculating the Working Capital. Each party shall set forth in writing its estimate of the Working Capital referred to the Accounting Referee for resolution, and the Accounting Referee shall, as promptly as practicable, be required to select the position of either one party or the other with respect to the Working Capital and to communicate such selection to both parties. The costs of the Accounting Referee shall be borne entirely by the party which does not have its position selected by the Accounting Referee. The determination of the Accounting Referee shall be final, conclusive and binding on the parties and shall be enforceable in any court having jurisdiction. (d) Buyer and Sellers agree that they will, and cause their respective independent accountants to and the Partnership Group to, cooperate and assist in the preparation of the Closing Date Balance Sheet. (b) Seller shall take a physical inventory (, the "Closing Inventory") calculation of the Divisions as Working Capital and, if applicable, the reviews referred to in this Section 2.03, including making available, to the extent necessary, books, records, work papers and personnel of the last day of the most recent month that is not more than 30 days prior to the Closing Date (or such other date as Seller and Purchaser shall mutually agree) and will prepare a preliminary balance sheet as of the date of the Closing Inventory (the "Preliminary Balance Sheet") reflecting the value of the Purchased Assets and the Assumed Liabilities as of the date of the Preliminary Balance Sheet. Purchaser and its representatives will have the right to participate in the taking of the Closing Inventory. Not less than five days prior to Closing, Seller will deliver a copy of the Preliminary Balance Sheet to Purchaser for its review. Seller and Purchaser will cooperate to determine a method reasonably acceptable to each party to make adjustments to and update the Preliminary Balance Sheet for purposes of preparing the Closing Date Balance SheetPartnership Group.

Closing Date Balance Sheet. (ai) Prior to ClosingWithin 60 calendar days after the Closing Date, the parties Buyer will cooperate prepare and deliver to LTI the Closing Date Balance Sheet reflecting the Closing Date Net Equity and the calculation thereof. The Buyer will provide LTI with access to copies of all work papers and other relevant documents to verify the information contained in preparing the Closing Date Balance Sheet. The Seller will have a balance sheet dated as period of 10 calendar days after delivery to it of the Closing Date Balance Sheet (the "Review Period") to review it and make any objections LTI may have in writing to the Buyer. (ii) If the Buyer does not receive any written objections to the Closing Date Balance Sheet") reflecting the amount by which the value of the Purchased Assets as of the Closing Date exceeds the Assumed Liabilities as of the Closing Date (the "Net Value"). Purchaser and Seller agree that Sheet from LTI within Review Period, the Closing Date Balance Sheet will be prepared in a manner consistent with the balance sheet as of June 28, 1997 attached hereto as Exhibit A deemed accepted by LTI and will reflect an update be final and binding on the parties hereto. (iii) If the Buyer receives written objections to the Closing Date Balance Sheet from LTI within the Review Period, then the Buyer and LTI will attempt to resolve the matter or matters in dispute, upon which resolution the Closing Date Balance Sheet will be final and binding on the parties hereto. If disputes with respect to the Closing Date Balance Sheet are not resolved by the Buyer and LTI within 15 calendar days after the receipt by the Buyer of the Preliminary Balance Sheet (as defined in Section 3.03(b) below). Purchaser and Seller will endeavor in good faith objections to resolve any disputes in the determination of the Net Value and the preparation of the Preliminary Balance Sheet and the Closing Date Balance Sheet. (b) Seller shall take a physical inventory (the "Closing Inventory") of the Divisions as of the last day of the most recent month that is not more than 30 days prior , then either party with notice to the Closing Date (other party may submit the specific matters in dispute to PriceWaterhouseCoopers LLP or such other date recognized independent accounting firm as Seller may be approved by the Buyer and Purchaser shall mutually agree) LTI, which firm will render its opinion as to the matters in dispute. Based on its opinion, such accounting firm will then send to the Buyer and will prepare LTI its determination on the specific matters in dispute, together with a preliminary balance sheet as of the date of the Closing Inventory (the "Preliminary Balance Sheet") reflecting the value of the Purchased Assets and the Assumed Liabilities as of the date of the Preliminary Balance Sheet. Purchaser and its representatives will have the right to participate in the taking of the Closing Inventory. Not less than five days prior to Closing, Seller will deliver a copy of the Preliminary Balance Sheet to Purchaser for its review. Seller and Purchaser will cooperate to determine a method reasonably acceptable to each party to make adjustments to and update the Preliminary Balance Sheet for purposes of preparing the Closing Date Balance Sheet.Sheet reflecting that resolution, which Closing Date Balance Sheet will be final and binding on the parties

Closing Date Balance Sheet. (a) Prior Not less than 2 days before the Closing Date, Seller, at its expense, shall deliver to Closing, the parties will cooperate in preparing Buyer a balance sheet dated of the Company, estimated as of at the latest month end prior to the Closing Date (the "Closing Date Balance Sheet") reflecting ), prepared on a basis consistent with the amount by which procedures and principles followed in the value preparation of the Purchased Assets as Interim Balance Sheet. The Closing Date Balance Sheet shall be accompanied by the calculation of the estimated Closing Date exceeds Net Assets for the Assumed Liabilities as purpose of calculating the Purchase Price in accordance with this Agreement. (b) Not later than 30 days following the Closing Date (the "Net Value"). Purchaser and Date, Buyer may submit to Seller agree that a list of any components of the Closing Date Balance Sheet will be prepared in a manner consistent with and/or the balance sheet as calculation of June 28, 1997 attached hereto as Exhibit A and will reflect an update of the Preliminary Balance Sheet (as defined in Section 3.03(b) below)Closing Date Net Assets which it disputes. Purchaser and Seller will The parties shall promptly endeavor in good faith to resolve any disputes dispute and, failing such resolution within 30 days following the submission by Buyer of its list of disputed items, the matters of dispute shall be submitted to a nationally recognized firm of public accountants mutually acceptable to Seller and Buyer (the "Auditor"), who shall have no conflict of interest with respect to either party and who shall serve as an arbitrator hereunder. The costs and fees of such Auditor shall be borne (i) in the determination of event that the Closing Date Net Value and the preparation of the Preliminary Balance Sheet and Assets calculated from the Closing Date Balance SheetSheet exceeds the Auditor's determination by more than $100,000, by the Seller, and (ii) otherwise, by Buyer. The determination of the Auditor with respect to any and all disputes shall be conclusive and binding on the parties. (bc) Seller shall take a physical inventory If, following the review and other procedures referred to in Section 2.4(b) above, (the "Closing Inventory"i) of the Divisions as of the last day of the most recent month that is not more than 30 days prior to the Closing Date (or such other date as Seller and Purchaser shall mutually agree) and will prepare a preliminary balance sheet as Net Assets of the date of the Closing Inventory (the "Preliminary Balance Sheet") reflecting the value of the Purchased Assets and the Assumed Liabilities as of the date of the Preliminary Balance Sheet. Purchaser and its representatives will have the right to participate in the taking of the Closing Inventory. Not less than five days prior to Closing, Seller will deliver a copy of the Preliminary Balance Sheet to Purchaser for its review. Seller and Purchaser will cooperate to determine a method reasonably acceptable to each party to make adjustments to and update the Preliminary Balance Sheet for purposes of preparing Company calculated from the Closing Date Balance SheetSheet are revised upwards, then the Purchase Price shall be increased by, and Buyer shall pay to Seller, an amount equal to the amount of such upward revision and (ii) the Closing Date Net Assets of the Company calculated from the Closing Date Balance Sheet are revised downwards, then the Purchase Price shall be decreased by, and Seller shall pay to Buyer, an amount equal to the amount of such downward revision. Payment of the applicable amount shall be made, by check or wire transfer of immediately available funds, within 5 days following the resolution of any dispute pursuant to Section 2.4(b).

Closing Date Balance Sheet. (a) Prior to ClosingWithin thirty (30) days following the Closing Date, the parties will cooperate in preparing Sellers shall prepare a balance sheet dated as statement of Assets and Assumed Liabilities based on the Closing Date balance sheet of the Sellers (the "Closing Date Balance SheetStatement") reflecting ). Except as provided in the amount by which the value of the Purchased Assets as of following sentence, the Closing Date exceeds Statement will include only the Assets and the Assumed Liabilities, and shall be prepared in accordance with generally accepted accounting principles consistently applied and the accounting practices used to prepare the Carve-Out Financial Statements consistent with the Business Books and Records. The Closing Date Statement will (i) also include as an Asset all outstanding obligations of customers of Sellers to make payments to Sellers for Products delivered or services rendered relating to the Business but with respect to which the customers have not yet been invoiced or billed and (ii) will not include any reference to severance payments or obligations. Parent and Purchasers acknowledge that Sellers have not historically included a separate reserve for receivables related to the EISD Division, and the Closing Date Statement will include a reasonable reserve for accounts receivable, calculated in accordance with GAAP. (b) In the event that the amount calculated by subtracting the Assumed Liabilities from the Assets as of set forth on the Closing Date Statement (the "Adjusted Net ValueWorth") is greater than $2,175,000.00, Parent and Purchasers shall pay Sellers in cash the difference between the Adjusted Net Worth and $2,175,000.00. If the Adjusted Net Worth is less than $2,175,000.00, Sellers shall pay Parent and Purchasers in cash the difference between $2,175,000.00 and the Adjusted Net Worth. Payment shall be made by wire transfer within three (3) business days after the parties either agree upon the difference or the difference is determined as set forth in Section 1.06(c). Purchaser . (c) Parent and Seller agree that Purchasers shall have the right to review fully all work papers relating to the Closing Date Balance Sheet will Statement in order to confirm that such Closing Date Statement has been determined as provided herein. Parent and Purchasers shall complete their review of such Closing Date Statement within thirty (30) days after such determination and related documentation have been made available for its review. If Parent and Purchasers believe that any adjustment should be prepared made to such Closing Date Statement in a manner consistent order for said amount to be determined in accordance with the balance sheet as requirements of June 28this Section, 1997 attached hereto as Exhibit A Parent and will reflect an update Purchasers shall give the Sellers written notice of such adjustments. If the Preliminary Balance Sheet (as defined in Section 3.03(b) below)Sellers agree with the adjustments proposed by Parent and Purchasers, the adjustments shall be made to such Closing Date Statement. Purchaser If there are proposed adjustments which are disputed by the Sellers, then the Sellers and Seller will endeavor Parent and Purchasers shall negotiate in good faith to resolve all disputed adjustments. If, after a period of thirty (30) days following the date on which Parent and Purchasers gives the Sellers written notice of any disputes in the determination of the Net Value proposed adjustments, any such adjustments still remain disputed, Parent and Purchasers and the preparation of the Preliminary Balance Sheet and the Closing Date Balance Sheet. (b) Seller shall take a physical inventory Sellers will jointly engage Deloitte & Touche LLP (the "Closing InventoryIndependent Accountant") to resolve any remaining disputed adjustments in accordance with this Agreement, and the decision of such firm shall be final, binding and nonappealable on the parties hereto and shall be deemed a final arbitration award that is enforceable pursuant to the terms of the Divisions as Federal Arbitration Act. Payment required under Section 1.06(b) and (c) shall be tendered within three (3) business days after the earlier of the last day agreement of the most recent month that is not more than 30 days prior parties on the amount thereof or a written notice of any resolution of such amount has been given by the Independent Accountant to the Closing Date (or such other date as Seller parties hereunder. All fees and Purchaser shall mutually agree) and will prepare a preliminary balance sheet as expenses of the date of Independent Accountant incurred in connection with such resolution shall be split equally between the Closing Inventory (the "Preliminary Balance Sheet") reflecting the value of the Purchased Assets and the Assumed Liabilities as of the date of the Preliminary Balance Sheet. Purchaser and its representatives will have the right to participate in the taking of the Closing Inventory. Not less than five days prior to Closing, Seller will deliver a copy of the Preliminary Balance Sheet to Purchaser for its review. Seller and Purchaser will cooperate to determine a method reasonably acceptable to each party to make adjustments to and update the Preliminary Balance Sheet for purposes of preparing the Closing Date Balance Sheetparties.

Closing Date Balance Sheet. (a) Prior As promptly as practicable, but not later than sixty (60) days after the Closing Date, Advantica will cause to Closing, the parties will cooperate in preparing be prepared and delivered to BAC a consolidated balance sheet dated for the Quincy's Entities as of the Closing Date (the "Closing Date Balance Sheet") reflecting the amount by which the value of the Purchased Assets as of the Closing Date exceeds the Assumed Liabilities as of the Closing Date (the "Net Value"). Purchaser and Seller agree that the , together with a certificate based on such Closing Date Balance Sheet will setting forth Advantica's calculation of Closing Date Value, which shall be prepared in a manner consistent with the balance sheet as of June 28, 1997 attached hereto as Exhibit A accounting policies and will reflect an update of the Preliminary Balance Sheet (as defined practices used in Section 3.03(b) below). Purchaser and Seller will endeavor in good faith to resolve any disputes in the determination of the Net Value and the preparation of SCHEDULE A. The Closing Date Balance Sheet shall (i) fairly present the Preliminary consolidated financial position of the Quincy's Entities as of the close of business on the Closing Date in accordance with generally accepted accounting principles applied on a basis consistent with those used in the preparation of SCHEDULE A, exclusive of adjustments related to "fresh-start" accounting and any other adjustments arising out of the Advantica Reorganization and adjustments eliminating all intercompany accounts such as indebtedness, accounts receivable and accounts payable, (ii) include line items substantially consistent with those in SCHEDULE A, and (iii) subject to the provisions of clause (i) above, be prepared in accordance with accounting policies and practices consistent with those used in the preparation of SCHEDULE A. (b) The Closing Date Balance Sheet and Advantica's calculation of Closing Date Value delivered pursuant to Section 1.6(a) shall be deemed final upon the earliest of (i) the date on which BAC agrees that such documents are final, (ii) the 45th day after delivery of such documents pursuant to Section 1.6(a), if BAC has not delivered a notice to Advantica expressing disagreement with such calculations and setting forth its calculation of such amount(s), and (iii) the date on which all disputes relating to such statements and calculations between the parties are resolved in accordance with Section 1.6(c). If BAC disagrees with Advantica's calculation of Closing Date Value, BAC shall have the right to deliver to Advantica within 45 days of BAC's receipt of such calculation a notice of disagreement which shall specify those items or amounts as to which it disagrees and set forth BAC's calculation of such amounts, and BAC shall be deemed to have agreed with all other items and amounts contained in the Closing Date Balance Sheet. Sheet and Advantica's calculation of Closing Date Value (b) Seller shall take a physical inventory (except to the "Closing Inventory") extent resolution of the Divisions as of the last day of the most recent month that is not more than 30 days prior items or amounts to the Closing Date (or such which BAC expresses disagreement requires conforming changes to other date as Seller items and Purchaser shall mutually agree) and will prepare a preliminary balance sheet as of the date of the Closing Inventory (the "Preliminary Balance Sheet") reflecting the value of the Purchased Assets and the Assumed Liabilities as of the date of the Preliminary Balance Sheet. Purchaser and its representatives will have the right to participate amounts contained in the taking of the Closing Inventory. Not less than five days prior to Closing, Seller will deliver a copy of the Preliminary Balance Sheet to Purchaser for its review. Seller and Purchaser will cooperate to determine a method reasonably acceptable to each party to make adjustments to and update the Preliminary Balance Sheet for purposes of preparing the Closing Date Balance SheetSheet or the calculation of the Closing Date Value). (c) If BAC shall deliver a notice of disagreement pursuant to Section 1.6(b), BAC and Advantica shall, during the thirty (30) days following such delivery, use their reasonable efforts to reach agreement on the disputed items or amounts (the "Disputed Amounts"