Common use of Adjustment Procedures Clause in Contracts

Adjustment Procedures. (1) Not later than 60 days after the Closing Date, the Buyer will prepare and deliver to the Seller an unaudited balance sheet (the "Closing Balance Sheet") of the Seller as of the Closing Date, consisting of a computation of the tangible book value as of the Closing Date of the Purchased Assets (excluding goodwill and other intangible assets) less the book value as of the Closing Date of the Assumed Liabilities, all as determined in accordance with the same accounting principles utilized in preparing the Seller's tax basis balance sheet as at December 31, 1996 included in the Financial Statements (as defined in Section 3.4(a). Notwithstanding the foregoing, the Seller's new and used car inventory reflected in the Closing Balance Sheet shall be based upon the values shown on the Seller's books and records as of the Closing Date; however, the determination of such values shall be based upon the same methodology utilized in determining new and used car inventory values reflected in the December 31, 1996 tax basis balance sheet included in the Financial Statements. The tangible net book value reflected on the Closing Balance Sheet is hereinafter called the "Net Book Value". The Buyer shall make reasonably available to the Seller and its agents the services of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ for the purpose of assisting the Seller in evaluating the Buyer's computation of Net Book Value and preparation of the Closing Balance Sheet. The Buyer warrants that ▇▇. ▇▇▇▇▇▇▇▇▇'▇ good faith assistance to the Seller shall not in any way prejudice her position as an employee of the Buyer. Further, the Buyer shall make freely available to the Seller all books and records as the Seller or its agents may reasonably require in order to evaluate the Buyer's computation of Net Book Value and preparation of the Closing Balance Sheet. If within 30 days following delivery of the Closing Balance Sheet (or the next Business Day if such 30th day is not a Business Day), the Seller has not given the Buyer notice of the Seller's 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 Seller's objection), then the Net Book Value reflected in the Closing Balance Sheet will be deemed mutually agreed by the Buyer and the Seller. If the Seller shall have 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 Seller (the "Accountants") for resolution. With respect to any such submission and dispute, the Buyer shall again make reasonably available to the Seller and its agents the services of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ without prejudice to her employment and shall further grant her (and Seller or its agents) access to all relevant books and records of the Buyer as she (and Seller or its agents) may reasonably require. If issues in dispute are submitted to the Accountants for resolution, (i) 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 will be afforded the opportunity to present to the Accountants any material relating to the determination and to discuss the determination with the Accountants; (ii) the Accountants will be instructed to determine the Net Book Value based upon their resolution of the issues in dispute; (iii) such determination by the Accountants of the Net Book Value, as set forth in a notice delivered to both parties by the Accountants, will be binding and conclusive on the parties; and (iv) the Buyer and the Seller shall each bear 50% of the fees and expenses of the Accountants for such determination. (2) To the extent that the Net Book Value, as deemed mutually agreed by the parties or as determined by the Accountants, as aforesaid, is less than $10,500,000, the Seller shall be obligated to pay the amount of such shortfall promptly to the Buyer, together with interest on such amount at the prime rate of NationsBank, N.A. from time to time in effect (the "Prime Rate") from the Closing Date to the date of payment, up to the Escrowed Amount. In furtherance of such obligation of the Seller, the parties shall execute and deliver to the Escrow Agent a joint instruction to pay such shortfall, plus interest, as aforesaid, to the Buyer, with any remaining balance of the Escrowed Amount to be paid to the Seller. To the extent that the amount of such shortfall in the Net Book Value, plus interest as aforesaid, shall exceed the Escrowed Amount, the Seller shall have no obligation to pay such excess to the Buyer, it being understood that the Buyer's sole recourse for any such shortfall in Net Book Value shall be to the Escrowed Amount. Any interest earned on investments of the Escrowed Amount shall be paid to the Seller. To the extent that the Net Book Value, as deemed mutually agreed by the parties or as determined by the Accountants, as aforesaid, exceeds $10,500,000, the Buyer shall be obligated to (i) execute and deliver to the Escrow Agent a joint instruction to pay the entire amount of the Escrowed Amount to the Seller, and (ii) pay the amount of such excess promptly to the Seller, together with interest on the amount of such excess at the Prime Rate from the Closing Date to the date of payment.

Adjustment Procedures. (1) Not later than 60 days after the Closing DateDate (as defined in Article 2 hereof), the Buyer will prepare and deliver to the Seller Sellers' Agent an unaudited balance sheet (the "Closing Balance SheetCLOSING BALANCE SHEET") of the Seller Sellers as of the Effective Closing Date, consisting of a computation computations of (A) the Net Current Assets, and (B) the tangible book value as of the Effective Closing Date of the Purchased Assets (excluding goodwill and other intangible assets) less the book value as of the Effective Closing Date of the Assumed Liabilities, all as determined in accordance with GAAP; PROVIDED, HOWEVER, that: new vehicle inventories shall be valued at factory invoice less factory holdback, dealer rebates, and any other factory incentives; used vehicle inventories shall include those vehicles of the same accounting principles utilized in preparing respective Sellers chosen by the Buyer on an "all or nothing" basis, meaning that, as to each Seller, the Buyer shall be free to choose either all or none (but not some) of such Seller's tax basis balance sheet as at December 31used vehicles, 1996 included it being understood that the Buyer shall not be required, in any case, to choose any used vehicles of the Financial Statements (as defined Seller which have been in Section 3.4(a). Notwithstanding the foregoing, the such Seller's new and used car vehicle inventory reflected in the Closing Balance Sheet shall be based upon the values shown on the Seller's books and records for more than 60 days as of the Closing Date; howeverno 1997 or older vehicles (other than up to a total of 15 1997 new vehicles acceptable to the Buyer) shall be included in new vehicle inventory; and there shall be included appropriate reserves and/or write-offs for doubtful accounts receivable and bad debts and for damaged, spoiled, obsolete, defective or slow-moving inventory. As used herein, the determination of such values shall term "slow moving" means (i) with respect to returnable parts, returnable parts older than twelve months, (ii) with respect to new vehicles, new vehicles older than 300 days, and (iii) with respect to other inventory (excluding used vehicles), as may be based upon the same methodology utilized in determining new and used car inventory values reflected in the December 31, 1996 tax basis balance sheet included in the Financial Statements. The tangible net book value reflected on the Closing Balance Sheet is hereinafter called the "Net Book Value". The Buyer shall make reasonably available to the Seller and its agents the services of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ for the purpose of assisting the Seller in evaluating determined by the Buyer's computation of Net Book Value and preparation of the Closing Balance Sheet. The Buyer warrants that ▇▇. ▇▇▇▇▇▇▇▇▇'▇ good faith assistance to the Seller shall not in any way prejudice her position as an employee of the Buyer. Further, the Buyer shall make freely available Sellers having a right to the Seller all books and records as the Seller or its agents may reasonably require in order arbitrate disputes with respect to evaluate the Buyer's computation of Net Book Value and preparation of the Closing Balance Sheetsuch other inventory. If within 30 days following delivery of the Closing Balance Sheet (or the next Business Day if such 30th day is not a Business Day), the Seller Sellers' Agent has not given the Buyer notice of the Seller's Sellers' objection to the computation computations of the Net Book Value Current Assets as set forth in the Closing Balance Sheet (such notice to contain a statement in reasonable detail of the nature of the Seller's Sellers' objection), then the Net Book Value Current Assets reflected in the Closing Balance Sheet will be deemed mutually agreed by the Buyer and the SellerSellers. If the Seller Sellers' Agent shall have 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 Seller Sellers' Agent (the "AccountantsACCOUNTANTS") for resolution. With respect to any such submission and dispute, the Buyer shall again make reasonably available to the Seller and its agents the services of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ without prejudice to her employment and shall further grant her (and Seller or its agents) access to all relevant books and records of the Buyer as she (and Seller or its agents) may reasonably require. If issues in dispute are submitted to the Accountants for resolution, (i) 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 will be afforded the opportunity to present to the Accountants any material relating to the determination and to discuss the determination with the Accountants; (ii) the Accountants will be instructed to determine the Net Book Value Current Assets based upon their resolution of the issues in dispute; (iii) such determination by the Accountants of the Net Book ValueCurrent Assets, as set forth in a notice delivered to both the parties by the Accountants, will be binding and conclusive on the parties; and (iv) the Buyer and the Seller Sellers shall each bear 50% of the fees and expenses of the Accountants for such determination. (2) To the extent that the Net Book ValueCurrent Assets, as deemed mutually agreed by the parties or as determined by the Accountants, as aforesaid, is less than $10,500,0008,000,000 (the "NET CURRENT ASSETS SHORTFALL"), the Seller Sellers shall be obligated obligated, jointly and severally, to pay the amount of such shortfall promptly to the BuyerNet Current Assets Shortfall, together with interest on such amount at a rate equal to the prime Buyer's floor plan financing rate of NationsBank, N.A. from time to time in effect (the "Prime RateINTEREST RATE") from and including the first day of the calendar month in which the Closing Date occurs to the date of payment, up promptly to the Escrowed AmountBuyer. In furtherance of such (but not by way of limitation of) the Sellers' obligation of in the Sellerimmediately preceding sentence, the parties Sellers' Agent and the Buyer shall execute and deliver to the Escrow Agent a joint instruction to pay such shortfall, plus interest, as aforesaid, deliver up to 500 of the Escrow Shares to the Buyer, with any remaining the balance of such 500 of the Escrowed Amount Escrow Shares to be paid delivered to the Seller. To Sellers so long as no claim by the extent that the amount of such shortfall in the Net Book Value, plus interest as aforesaid, Buyer for indemnification shall exceed the Escrowed Amount, the Seller shall have no obligation then be pending pursuant to pay such excess to the Buyer, it being understood that the Buyer's sole recourse for any such shortfall in Net Book Value shall be to the Escrowed Amount. Any interest earned on investments of the Escrowed Amount shall be paid to the Sellerthis Agreement. To the extent that the Net Book ValueCurrent Assets, as deemed mutually agreed by the parties or as determined by the Accountants, as aforesaid, exceeds is at least equal to $10,500,0008,000,000, the Buyer shall be obligated to (i) execute and deliver to the Escrow Agent a joint instruction to pay the entire amount deliver 500 of the Escrowed Amount Escrow Shares to the SellerSellers pursuant to the Escrow Agreement (except to the extent of any pending claim by the Buyer for indemnification pursuant to this Agreement). To the extent that the Net Current Assets, and as deemed mutually agreed by the parties or as determined by the Accountants, as aforesaid, is greater than $8,000,000 (ii) the "NET CURRENT ASSETS EXCESS"), the Buyer shall be obligated to pay the amount of such excess the Net Current Assets Excess in cash promptly to the SellerSellers, together with interest on the amount of such excess thereon at the Prime Interest Rate from and including the first day of the calendar month in which the Closing Date occurs to the date of payment.

Adjustment Procedures. (1A) Not later than 60 Buyer will cause certified public accountants selected by it to prepare a balance sheet of the Company as of the Closing Date (the "Closing Date Balance Sheet"), which, together with the inventory calculation determined under Section 1.1 above, shall be used for the computation of the Closing Date Target Asset Amount (the "Target Assets Computation"). Buyer will deliver the Closing Date Balance Sheet and the Target Assets Computation (together with all work papers, schedules, memorandums, and other documents used to prepare the same, in each case, in whatever form they exist) to Seller within sixty days after the Closing Date. The parties agree and acknowledge that for purposes of preparing the Closing Date Balance Sheet, the Buyer will prepare institutional debt and deliver to the Seller an unaudited balance sheet shareholder debt referenced in clauses (the "Closing Balance Sheet"ii) and (iii) of Schedule 1.1 shall not be included as liabilities of the Seller as of Company; provided, that such institutional debt and shareholder debt is paid in full and/or forgiven on the Closing Date, consisting of a computation of the tangible book value as of the Closing Date of the Purchased Assets (excluding goodwill and other intangible assets) less the book value as of the Closing Date of the Assumed Liabilities, all as determined in accordance with the same accounting principles utilized in preparing the Seller's tax basis balance sheet as at December 31, 1996 included in the Financial Statements (as defined in Section 3.4(a). Notwithstanding the foregoing, the Seller's new and used car inventory reflected in the Closing Balance Sheet shall be based upon the values shown on the Seller's books and records as of the Closing Date; however, the determination of such values shall be based upon the same methodology utilized in determining new and used car inventory values reflected in the December 31, 1996 tax basis balance sheet included in the Financial Statements. The tangible net book value reflected on the Closing Balance Sheet is hereinafter called the "Net Book Value". The Buyer shall make reasonably available to the Seller and its agents the services of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ for the purpose of assisting the Seller in evaluating the Buyer's computation of Net Book Value and preparation of the Closing Balance Sheet. The Buyer warrants that ▇▇. ▇▇▇▇▇▇▇▇▇'▇ good faith assistance to the Seller shall not in any way prejudice her position as an employee of the Buyer. Further, the Buyer shall make freely available to the Seller all books and records as the Seller or its agents may reasonably require in order to evaluate the Buyer's computation of Net Book Value and preparation of the Closing Balance Sheet. If within 30 thirty days following delivery of the Closing Date Balance Sheet (or the next Business Day if such 30th day is not a Business Day), the and Target Assets Computation Seller has not given the Buyer notice of the Seller's its objection to the computation of the Net Book Value as set forth in the Closing Balance Sheet Target Assets Computation (such notice to must contain a statement in reasonable detail of the nature basis of the SellerBuyer's objection), then the Net Book Value Closing Date Target Asset Amount reflected in the Closing Balance Sheet Target Assets Computation will be deemed mutually agreed used in computing the Adjustment Amount. If Seller gives such notice of objection, then Seller and Buyer will use reasonable efforts to resolve any disagreements as to the computation of the Closing Date Target Asset Amount, but if they do not obtain a final resolution within thirty (30) days after Seller delivers a notice of objection Notice, Seller and Buyer will jointly retain an independent accounting firm of recognized national or regional standing (the "Accounting Firm") to resolve the issues in dispute. If Seller and Buyer are unable to agree on the choice of the Accounting Firm, the Accounting Firm will be an independent accounting firm of recognized national or regional standing selected by the Buyer firms designated by each of Seller and the SellerBuyer. If the Seller shall have 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 Seller (the "Accountants") for resolution. With respect to any such submission and dispute, the Buyer shall again make reasonably available to the Seller and its agents the services of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ without prejudice to her employment and shall further grant her (and Seller or its agents) access to all relevant books and records of the Buyer as she (and Seller or its agents) may reasonably require. If issues in dispute are submitted to the Accountants Accounting Firm for resolution, resolution (i) each party will furnish to the Accountants such workpapers Accounting Firm selected work papers and other documents and information relating to the disputed issues as the Accountants Accounting Firm may request and are available to the party or its subsidiaries (or its independent public accountants)that party, and will be afforded the opportunity to present to the Accountants Accounting Firm any material relating to the determination and to discuss the determination with the Accountants; (ii) the Accountants will be instructed to determine the Net Book Value based upon their resolution of the issues in dispute; (iii) such determination by the Accountants of the Net Book Value, as set forth in a notice delivered to both parties by the Accountants, will be binding and conclusive on the parties; and (iv) the Buyer and the Seller shall each bear 50% of the fees and expenses of the Accountants for such determination. (2) To the extent that the Net Book Value, as deemed mutually agreed by the parties or as determined by the Accountants, as aforesaid, is less than $10,500,000, the Seller shall be obligated to pay the amount of such shortfall promptly to the Buyer, together with interest on such amount at the prime rate of NationsBank, N.A. from time to time in effect (the "Prime Rate") from the Closing Date to the date of payment, up to the Escrowed Amount. In furtherance of such obligation of the Seller, the parties shall execute and deliver to the Escrow Agent a joint instruction to pay such shortfall, plus interest, as aforesaid, to the Buyer, with any remaining balance of the Escrowed Amount to be paid to the Seller. To the extent that the amount of such shortfall in the Net Book Value, plus interest as aforesaid, shall exceed the Escrowed Amount, the Seller shall have no obligation to pay such excess to the Buyer, it being understood that the Buyer's sole recourse for any such shortfall in Net Book Value shall be to the Escrowed Amount. Any interest earned on investments of the Escrowed Amount shall be paid to the Seller. To the extent that the Net Book Value, as deemed mutually agreed by the parties or as determined by the Accountants, as aforesaid, exceeds $10,500,000, the Buyer shall be obligated to (i) execute and deliver to the Escrow Agent a joint instruction to pay the entire amount of the Escrowed Amount to the Seller, and (ii) pay the amount of such excess promptly to the Seller, together with interest on the amount of such excess at the Prime Rate from the Closing Date to the date of payment.Accounting Firm;