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 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/▇▇▇▇▇▇▇.1 8 -

Preparation of Closing Balance Sheet. (i) As promptly as practicablepracticable following the Closing Date, but in no event 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 in writingDate, Purchaser will prepare or cause the Sellers shall deliver to be prepared a consolidated balance sheet of Buyer (a) the Brand Companies as of the Closing Date (the “Closing Balance Sheet”), which shall be prepared in accordance with the Brand Companies’ historical practices GAAP, consistently applied, and presented in on a manner basis consistent with Schedule 2.05(bthe principles, methods and policies used in the preparation of the combined balance sheet of Sellers at December 31, 1994 included in the Financial Statements and the Balance Sheet (to the extent that such principles, methods, and policies are consistent with and proper under GAAP), accompanied by a favorable audit opinion of ▇▇▇▇▇ & ▇▇▇▇▇, and (b) to be delivered to Seller, together with a statement (of the “Net Asset Value of Seller shown on the Closing Statement”) setting forth in reasonable detail Purchaser’s calculation of (i) the Cash on Hand, Balance Sheet. (ii) Each Seller shall provide, and shall cause ▇▇▇▇▇ & ▇▇▇▇▇ to provide, Buyer (and its employees, accountants and other representatives) with full, complete and contemporaneous access to the Closing Indebtedness, work (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 Buyer disputes the correctness of the Closing Balance Sheet or the statement of the Net Asset Value of the Sellers provided by the Sellers, Buyer shall notify the Sellers in writing of its objections within 20 business days after its receipt of the Closing Balance Sheet and shall describe, in reasonable detail, the reasons for Buyer's objections. If ▇▇▇▇▇ fails to deliver a notice of objection to the Sellers within such 20-day period, Buyer shall be deemed to have accepted the Closing Balance Sheet and the Closing Statement statement of the Net Asset Value of Seller provided to Buyer by Sellers. If, however, ▇▇▇▇▇ delivers a notice of objection to the Sellers within such 7520-day period, Purchaser Buyer and Sellers shall be conclusively deemed endeavor in good faith to have accepted resolve any disputed items within 10 business days after the Estimated Cash on Hand, date of Sellers' receipt of Buyer's notice of objection. In the Estimated event that Buyer and Sellers are unable to resolve any items in dispute relating to the Closing Indebtedness Balance Sheet and the Estimated Company Transaction Expenses as statement of Net Asset Value provided to Buyer by Sellers, Buyer and Sellers shall select a nationally known independent accounting firm (the Cash on Hand, the Closing Indebtedness"Independent Accountants") to resolve all items remaining in dispute, and the Company Transaction Expensesdetermination of the Independent Accountants in respect of such items shall be conclusive and binding on the parties. The Independent Accountants shall be instructed by ▇▇▇▇▇▇▇ and ▇▇▇▇▇ to prepare and deliver to Sellers and Buyer, respectivelyafter resolving any items in dispute between Sellers and Buyer, a balance sheet of Sellers as of the Closing Date reflecting its resolution of all issues in dispute and a statement of the Net Asset Value of Sellers shown thereon. (iv) The Net Asset Value of the Sellers as finally determined pursuant to this Section 2.4(b) (whether by failure of Buyer to deliver a notice of objection to Sellers, by the agreement of the parties or by the final determination of the Independent Accountants) shall be deemed to be, and shall be referred to herein as, the "Final Net Asset Value." (v) Sellers shall bear, and be solely responsible for, all of their costs and expenses incurred in connection with the preparation of the Closing Balance Sheet; provided, however, that Seller shall not be responsible for costs and expenses associated with individuals who become and remain Buyer's employees following Closing. Purchaser acknowledges The Sellers and agrees thatBuyer shall each bear, for and be responsible for, the purposes costs and expenses incurred by each of Seller’s them (including the fees and expenses of their respective accounting firms) in connection with their review of the Closing Balance Sheet delivered Sheet. If the Independent Accountants are engaged, the fees and expenses of the Independent Accountants will be paid (i) by Purchaser pursuant to this Section 2.06(a), Purchaser shall afford, the Sellers in the event the review of the Independent Accountants results in a negative variance of more 17 than ten percent (10%) in the disputed item or the aggregate of the disputed items from the amount(s) represented by the Sellers and shall cause the Company to afford, Seller commercially reasonable access during normal business hours favorable to the Buyer; and (ii) by ▇▇▇▇▇ in the event the review of the Independent Accountants does not reveal such a variance. (vi) Buyer acknowledges that from and after the Closing Date the employees of Sellers shall be the employees of ▇▇▇▇▇ and the Assets, including books and records (other than privileged documentsof the Sellers shall be the property of Buyer. Accordingly, Buyer shall make each of Sellers' former employees who accepts employment with ▇▇▇▇▇ and Sellers' books and records acquired by Buyer available to the Sellers, its advisors and representatives and to Ernst & ▇▇▇▇▇ at such time and from time to time as shall be necessary to allow each Seller to comply with its obligations under this Section 2.4(b) of Purchaser, and elsewhere in this Agreement and its obligations under any Applicable Law with respect to matters occurring prior to the Brand Companies and their respective RepresentativesClosing Date.

Preparation of Closing Balance Sheet. As promptly as practicable, but no later than 5:00 p.m. (Mountain Time) on the 75th day Within 45 days after the Closing Date or such later date as Purchaser and Seller agree in writingDate, Purchaser will prepare or SVI shall cause to be have prepared a consolidated and delivered to Buyer (i) an audited closing balance sheet of for the Brand Companies Business (the "Closing Balance Sheet") as of the close of business on the Closing Date (and related audited income statement for the “Closing Balance Sheet”), prepared in accordance with the Brand Companies’ historical practices period then ended 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 an audited balance sheet for SVI as of the Closing, in each case, prepared by Purchaser in good faith in accordance with close of business on the Brand Companies’ historical practices Closing Date and presented in related audited income statement for the period then ended (determined on a manner consistent with the pro forma example attached hereto basis as Schedule 2.05(bthough the parties had not consummated the transactions contemplated by this Agreement), and (iv) . Buyer shall assist SVI in the Final Net Closing Cash Consideration based on the foregoing. In the event that Purchaser does not deliver preparation of the Closing Balance Sheet and shall provide SVI and its representatives access at all reasonable times to the personnel, properties, books and records of the Business for such purpose. Such Closing Statement within such 75-day period, Purchaser Balance Sheet and related income statement shall be conclusively deemed to have prepared consistent with the Accounting Methodology and using generally accepted accounting principles, consistently applied, except as set forth in the Estimated Cash on Hand, Accounting Methodology and shall take account of the Estimated Closing Indebtedness results of the physical inventory and inspection of the Estimated Company Transaction Expenses as Assets and Business set forth below. During 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 45 days immediately following Buyer's receipt of the Closing Balance Sheet delivered by Purchaser pursuant Sheet, Buyer will be permitted to this Section 2.06(a), Purchaser shall afford, and shall cause the Company to afford, Seller commercially reasonable access during normal business hours review SVI's working papers relating to the books Closing Balance Sheet. The Closing Balance Sheet shall become final and records binding upon the parties on the 45th day following receipt thereof by Buyer unless Buyer gives written notice of its disagreement (other than privileged documents"Notice of Disagreement") to SVI prior to such date. Any Notice of PurchaserDisagreement shall specify in reasonable detail the nature of any disagreement so asserted. If a timely Notice of Disagreement is received by SVI, then the Brand Companies Closing Balance Sheet (as revised in accordance with clause (x) or (y) below) shall become final and their respective Representatives.binding upon the parties on the earlier of (x) the date the parties hereto resolve in writing any differences they have with respect to any matter specified in the Notice of Disagreement or (y) the date the Accounting Firm completes a Final Closing

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 2.3.1. Commencing promptly as practicableafter Closing, but no later than 5:00 p.m. (Mountain Time) on the 75th day after Seller, at its expense, shall prepare the Closing Date or such later date as Purchaser Balance Sheet in a manner consistent with and Seller agree in writing, Purchaser will prepare or cause a format similar to be prepared a consolidated balance sheet that of the Brand Pre-Closing Statements reflecting previously mutually agreed accounts and balances that will transfer at Closing for the Sale Companies and JV Companies, as described in Exhibit 2.3.1. 2.3.2. Within sixty (60) days of the Closing Date (Closing, Seller shall deliver to Purchaser the “Closing Balance Sheet”), Sheet prepared in accordance with the Brand Companies’ historical practices Pre-Closing Statements. Contemporaneously, Seller shall deliver to Purchaser a schedule setting forth a calculation of the Purchase Price and presented in a manner consistent with Schedule 2.05(b) the amount of any payment to be delivered made, and by whom, pursuant to SellerSection 2.1. 2.3.3. The Purchaser and its Affiliates will, together with a statement (the “after 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 and pending agreement or final determination of the Closingfinal Closing Balance Sheet, in each caseallow Seller and its Affiliates and their accountants, prepared by Purchaser in good faith in accordance with agents and advisers such access to the Brand Companies’ historical practices Combined Business, all relevant employees and presented in a manner consistent with all relevant records, information and other documentation (and will, upon request, provide copies thereof) as is reasonably necessary to enable 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 Seller to prepare the Closing Balance Sheet and to settle the final Closing Balance Sheet, including access to and the services of key personnel (including supporting the June financial close). If Purchaser is in disagreement with the Closing Statement within such 75-day periodBalance Sheet or with Seller's calculation of the Purchase Price, Purchaser shall be conclusively deemed to have accepted the Estimated Cash on Handshall, 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 within thirty (30) days after receipt of the Closing Balance Sheet delivered Sheet, notify Seller in writing (a "NOTICE OF DISAGREEMENT") of disagreements which, on an item by Purchaser pursuant item basis (individually) or in relation to this Section 2.06(a)a series of related items in the aggregate, Purchaser exceed $100,000. Any Notice of Disagreement shall affordspecify, in reasonable detail, the nature of any disagreement so asserted, and include all supporting schedules, analyses, working papers and other documentation. Failing service of any Notice of Disagreement as aforesaid, Seller's calculation shall cause be final and binding on 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 RepresentativesParties.

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."