Common use of Closing Balance Sheet Clause in Contracts

Closing Balance Sheet. As promptly as practicable, but in any event within 75 days following the Closing, the Purchaser shall deliver to the Seller a balance sheet (the “Closing Balance Sheet”) with respect to the Business as of 11:59 p.m. on the day immediately preceding the Closing Date, together with a certificate of the Purchaser certifying that the Closing Balance Sheet (i) has been prepared in accordance with U.S. GAAP and on a basis substantially consistent with the preparation of the balance sheet of the Business dated as of October 31, 2002 (a copy of which is attached hereto as Exhibit 2.06(a)) (the “Interim Balance Sheet”; the date as of which the Interim Balance Sheet is prepared being referred to herein as the “Interim Balance Sheet Date”) and the other Financial Statements; provided, however, that the Closing Balance Sheet will (w) reflect an accrual of the full cost of the Business’s reduction in force described in Section 6.07 of the Disclosure Schedule; (x) not reflect any write up of the value of the Business’s NYSE seats to market; (y) reflect the accrual of the Seller’s Savings Plans contributions relating to the Employees (wherever located) for the period beginning on January 1, 2003 and ending on the Closing Date and (z) continue full fixed assets depreciation for discontinued operations through the Closing Date, and (ii) reflects, among other things, an accrual for incentive performance bonuses payable to employees of the Pershing Companies with respect to the period commencing on January 1, 2003, and ending on the Closing Date that is consistent with the past practice of the Business and, in any event (x) with respect to those employees with the title of vice president or more senior, at least equal to that calculated for such employees for such period in accordance with the calculation set forth in Exhibit 2.06(b), and (y) with respect to such employees with the title of assistant vice president or more junior, at a rate equal to at least $1.5 million per month (or portion thereof) during such period.

Closing Balance Sheet. As promptly as practicable(a) No later than 45 days after the Effective Date, but in any event within 75 days following the Closing, the Purchaser Newco shall deliver to the Seller Buyer a consolidated balance sheet for the Retained Business at the Effective Date after giving effect to the Distribution (but not to the Merger) (the “"Closing Balance Sheet”) "). The Closing Balance Sheet shall be prepared in accordance with respect to generally accepted accounting principles on a basis consistent with the Business as of 11:59 p.m. on the day immediately preceding the Closing Date, together with a certificate of the Purchaser certifying Company Financial Statements (except that the Closing Balance Sheet (i) has will not include any assets or liabilities that have been prepared transferred to or assumed by Newco pursuant to the Distribution Agreement, including without limitation liabilities or reserves in accordance respect of Continuing Claims (as defined in the Distribution Agreement), (ii) will reflect all film contracts as long-term assets and all film contract payables as long-term liabilities, and (iii) will not reflect as current liabilities the Bank Indebtedness (as defined in Section 7.2(e), or the Severance Agreements for Retained Employees specified in Section 6.6). To the extent that the net working capital (current assets less current liabilities) of the Retained Business as shown on the Closing Balance Sheet is more or less than the amount estimated by the chief financial officer of the Company as the net working capital as of the Effective Date pursuant to Section 7.2(e), Buyer shall pay to Newco, or Newco shall pay to Buyer, the amount of such excess or shortfall, respectively, in cash within five days of the earlier to occur of (i) acceptance by Buyer or (ii) the Neutral Auditors' determination. (b) After receipt of the Closing Balance Sheet, Buyer shall have 20 days to review the Closing Balance Sheet, together with U.S. GAAP the workpapers used in the preparation thereof. The parties agree that representatives of Buyer and on a basis substantially consistent with Newco shall be given access to all work papers, books, records and other information related to the preparation of the balance sheet Closing Balance Sheet to the extent required to complete their review of the Business dated as of October 31, 2002 (a copy of which is attached hereto as Exhibit 2.06(a)) (the “Interim Closing Balance Sheet”; . Buyer may dispute items reflected on the date as of which the Interim Closing Date Balance Sheet is prepared being referred to herein as only on the “Interim Balance Sheet Date”) and basis that such amounts were not arrived at in accordance with the other consistent application of accounting principles used in the preparation of the Company Financial Statements; provided, however, that . Unless Buyer delivers written notice to Newco on or prior to the 20th day after Buyer's receipt of the Closing Balance Sheet will specifying in reasonable detail all disputed items and the basis therefor, Buyer shall be deemed to have accepted and agreed to the Closing Balance Sheet. If Buyer so notifies Newco of its objection to the Closing Balance Sheet, Buyer and Newco shall, within 30 days following such notice (wthe "Resolution Period"), attempt to resolve their differences and any resolution by them as to any disputed amounts shall be final, binding and conclusive. (c) reflect an accrual If at the conclusion of the full cost Resolution Period there remain amounts in dispute pursuant to paragraph (b) of this Section 6.12, then all amounts remaining in dispute shall be submitted to a firm of nationally recognized independent public accountants who shall not have had a material relationship with Buyer, Newco, or the Company within the past two years (the "Neutral Auditors") and who shall be selected by mutual agreement of Buyer and Newco within 10 days after the expiration of the Business’s reduction in force described in Section 6.07 of Resolution Period. Each party agrees to execute, if requested by the Disclosure Schedule; (x) not reflect any write up of the value of the Business’s NYSE seats to market; (y) reflect the accrual of the Seller’s Savings Plans contributions relating to the Employees (wherever located) for the period beginning on January 1Neutral Auditors, 2003 a reasonable engagement letter. All fees and ending on the Closing Date and (z) continue full fixed assets depreciation for discontinued operations through the Closing Date, and (ii) reflects, among other things, an accrual for incentive performance bonuses payable to employees of the Pershing Companies with respect to the period commencing on January 1, 2003, and ending on the Closing Date that is consistent with the past practice of the Business and, in any event (x) with respect to those employees with the title of vice president or more senior, at least equal to that calculated for such employees for such period in accordance with the calculation set forth in Exhibit 2.06(b), and (y) with respect to such employees with the title of assistant vice president or more junior, at a rate equal to at least $1.5 million per month (or portion thereof) during such period.expenses

Closing Balance Sheet. (a) As promptly as practicable, but in any event within 75 days following no later than 90 days, after the ClosingClosing Date, Seller Representative will cause to be prepared and delivered to Buyer an audited combined balance sheet of the Companies and Subsidiaries as of the close of business on the Closing Date (or, if the Closing Date does not fall on the Month End Date, the Purchaser shall deliver to the Seller a Month End Date) (such audited combined balance sheet (sheet, the “Closing Balance Sheet”) with respect to the Business as of 11:59 p.m. on the day immediately preceding the Closing Date), together with a certificate based on such Closing Balance Sheet setting forth Seller Representative’s calculations of (i) Closing Debt, (ii) Closing Cash and (ii) Closing Working Capital along with the supporting details and working papers for those calculations. For the purpose of the Purchaser certifying preceding sentence, the audit shall be conducted by PricewaterhouseCoopers, with the costs of the audit to be borne equally by Buyer, on the one hand, and Sellers, on the other hand. The Closing Balance Sheet shall (x) be prepared in accordance with GAAP applied on a basis consistent with that used in the preparation of the Balance Sheet, (y) be prepared in accordance with accounting policies and practices consistent with those used in the preparation of the Balance Sheet and (z) include line items substantially consistent with those in the Balance Sheet, except as set forth in Schedule 2.03(a). For the purposes of this Section 2.03, to the extent practicable, in the Seller Representative’s preparation of the Closing Balance Sheet, Buyer and its advisors, shall be (1) permitted to observe inventory counts and reviewing asset and liability values, (2) permitted to review the working papers of the audit of the Closing Balance Sheet once delivered in accordance with this Section 2.03(a), and (3) informed by the Sellers of GAAP adjustments; in each case at Buyer’s own expense. (b) If Buyer disagrees with Seller Representative’s calculations of Closing Debt, Closing Cash or Closing Working Capital delivered pursuant to Section 2.03(a), Buyer may, within 30 days after delivery of the documents referred to in Section 2.03(a), deliver a notice to Seller Representative disagreeing with such calculation of Closing Debt, Closing Cash or Closing Working Capital, as the case may be, setting forth Buyer’s calculation of such amount of Closing Debt, Closing Cash or Closing Working Capital, as the case may be, and in reasonable detail Buyer’s grounds for such disagreement. Any such notice of disagreement shall specify those items or amounts as to which Buyer disagrees, and Buyer shall be deemed to have agreed with all other items and amounts contained in the Closing Balance Sheet and the calculations of Closing Debt, Closing Cash and Closing Working Capital delivered pursuant to Section 2.03(a). (c) If a notice of disagreement shall be duly delivered pursuant to Section 2.03(b), Buyer and Seller Representative shall, during the 30 days following such delivery, use their reasonable best efforts to reach agreement on the disputed items or amounts in order to determine, as applicable, the amount of Closing Debt, Closing Cash or Closing Working Capital. If, during such period, Buyer and Seller Representative are unable to reach such agreement, they shall promptly thereafter cause Deloitte & Touche (or such other independent accountants mutually agreed by Buyer and Seller Representative) promptly to review this Agreement and the disputed items or amounts for the purpose of calculating Closing Debt, Closing Cash or Closing Working Capital, as the case may be. In making such calculation, such independent accountants shall consider only those items or amounts in Closing Debt, Closing Cash or Closing Working Capital, as the case may be, as to which Buyer has disagreed. Such independent accountants shall deliver to Buyer and Seller Representative, as promptly as practicable, a report setting forth such calculation. Such report shall be final and binding upon Buyer and all Sellers. The aggregate costs of any such review and report arising out of disagreements over Closing Debt, Closing Cash or Closing Working Capital shall be borne (i) has been prepared by Sellers if (x) the aggregate difference between (A) Final Debt, Final Cash and Final Working Capital and (B) Seller Representative’s calculations of the Closing Debt, Closing Cash and Closing Working Capital, respectively, delivered pursuant to Section 2.03(a) is greater than (y) the aggregate difference between (A) Final Debt, Final Cash and Final Working Capital and (B) Buyer’s calculations of Closing Debt, Closing Cash and Closing Working Capital, respectively, delivered pursuant to Section 2.03(b), (ii) by Buyer if the first such difference is less than the second such difference or (iii) otherwise equally by Buyer, on the one hand, and Sellers, on the other hand. (d) Buyer and Sellers agree that they will, and Buyer agrees to cause each Company and Subsidiary to, cooperate and assist in accordance with U.S. GAAP and on a basis substantially consistent with the preparation of the balance sheet of the Business dated as of October 31, 2002 (a copy of which is attached hereto as Exhibit 2.06(a)) (the “Interim Balance Sheet”; the date as of which the Interim Balance Sheet is prepared being referred to herein as the “Interim Balance Sheet Date”) and the other Financial Statements; provided, however, that the Closing Balance Sheet will (w) reflect an accrual and the calculations of Closing Debt, Closing Cash and Closing Working Capital and in the conduct of the full cost of the Business’s reduction reviews referred to in force described in this Section 6.07 of the Disclosure Schedule; (x) not reflect any write up of the value of the Business’s NYSE seats to market; (y) reflect the accrual of the Seller’s Savings Plans contributions relating 2.03, including making available to the Employees (wherever located) for the period beginning on January 1extent necessary books, 2003 records, work papers and ending on the Closing Date and (z) continue full fixed assets depreciation for discontinued operations through the Closing Date, and (ii) reflects, among other things, an accrual for incentive performance bonuses payable to employees of the Pershing Companies with respect to the period commencing on January 1, 2003, and ending on the Closing Date that is consistent with the past practice of the Business and, in any event (x) with respect to those employees with the title of vice president or more senior, at least equal to that calculated for such employees for such period in accordance with the calculation set forth in Exhibit 2.06(b), and (y) with respect to such employees with the title of assistant vice president or more junior, at a rate equal to at least $1.5 million per month (or portion thereof) during such periodpersonnel.