Common use of Balance Sheet Clause in Contracts

Balance Sheet. (a) Within fifteen (15) days following the Closing Date, Sellers shall prepare and deliver to Buyers a combined balance sheet effective as of the Closing Date (the "Closing Balance Sheet"), and a related combined statement of income for the period beginning September 1, 2001 and ending as of the Closing Date, of the Acquired Companies, showing the final status of all assets and liabilities (including Combined Working Capital) as of the Closing Date and the results of its operations for the periods then ended, all prepared in accordance with GAAP. The Closing Balance Sheet shall be reviewed by the Buyers and, if the Buyers have any objections to the Closing Balance Sheet, Buyers and Sellers shall work reasonably and in good faith to resolve such objections. (b) If Buyers and Sellers are not able to resolve their disagreements and objections with respect to the Closing Balance Sheet within thirty (30) days after Sellers deliver the Closing Balance Sheet to Buyers, then the issues in dispute will be submitted to the Denver, Colorado office of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, LLP independent certified public accountants (the "Accountants") for resolution. If issues in dispute are submitted to the Accountants for resolution, (i) each party will furnish to the Accountants such work papers and other documents and information relating to the disputed issues as the Accountants may request and are available to that 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; and (ii) in addition to the material submitted in subparagraph (i) above, the Accountants shall consider compliance by the Sellers in the operation of the businesses of the Acquired Companies under the standard of the Ordinary Course of Business. The determination by the Accountants, as set forth in a notice delivered to both parties by the Accountants, will be binding and conclusive on the parties. Buyers and Sellers shall each bear 50% of the fees of the Accountants for such determination. (c) Upon finalization of the Closing Balance Sheet and the calculation of the Combined Working Capital of the Acquired Companies in accordance with Sections 1.6(a) or 1.6(b), any adjustment to the Combined Working Capital which would have an effect on the amount of the Working Capital Payment, should be reflected by the revision of the amount of the Working Capital Note including the interest accruals thereon. In the event of such a revision, the Working Capital Note issued as of the Closing Date shall be retired and replaced in its entirety by a Working Capital Note in the amount as determined under this Section 1.6(c) within ten (10) days after receiving the Accountants' binding determination.

Balance Sheet. (a) Within fifteen (15) Chiron shall, at its own cost and expense, prepare and deliver to the Purchaser within 60 days following after the Closing Date, Sellers shall prepare and deliver to Buyers a combined consolidated balance sheet effective for the Company and its Subsidiaries (as defined in Section 2.4.4) as of the Closing Date (the "Closing Date Balance Sheet")) which shall include, in addition to the other information set forth therein, the Closing Date Net Assets. The Closing Date Balance Sheet shall be prepared in accordance with the Agreed Procedure, and shall be accompanied by an audit opinion thereon of KPMG Peat Marwick LLP ("KPMG") to the effect that the Closing Date Balance Sheet, and the assets and liabilities reflected thereon, were prepared and determined in accordance with the Agreed Procedure. The Closing Date Balance Sheet shall be accompanied by a related combined statement supplementary schedule setting forth the calculation of income for the adjustment to the Purchase Price contemplated by Section 1.5. 1. During the sixty-day period beginning September 1following the Closing, 2001 the Purchaser will cause the Company to provide to Chiron and ending its accountants reasonable access during normal business hours to such books and records of the Company as may be necessary to enable Chiron to prepare the Closing Date Balance Sheet. Chiron shall make available to the Purchaser all work papers, books and records used by it in the preparation and audit of the Closing DateDate Balance Sheet, and shall provide copies of the Acquired Companiessame. The Purchaser and such accountants or auditors of its choice (the cost and expense of which shall be borne by the Purchaser) shall be entitled to jointly conduct with Chiron and KPMG, showing or otherwise participate in or monitor, a physical count of the final status of all assets and liabilities (including Combined Working Capital) inventories on hand as of the Closing Date (or such other date as the Purchaser and the results of its operations for the periods then ended, all prepared in accordance with GAAP. The Closing Balance Sheet Chiron shall be reviewed by the Buyers and, if the Buyers have any objections mutually agree) and such other procedures acceptable to the Closing Balance Sheet, Buyers and Sellers shall work reasonably and in good faith Purchaser with respect to resolve such objectionsany inventory on consignment. (b) The Purchaser shall have 30 business days after its receipt of the Closing Date Balance Sheet and related supplementary schedules to review them (the "Review Period"). On or prior to the expiration of the Review Period, the Purchaser shall notify Chiron in writing if it does not agree with Chiron's calculation of any adjustment to the Purchase Price (the "Disagreement Notice"), which notice shall include a brief description of the basis of its disagreement, including its calculation of any adjustment to the Purchase Price. If Buyers Chiron does not receive the Disagreement Notice on or prior to the expiration of the Review Period, the Purchaser shall be deemed to have approved the Closing Date Balance Sheet and Sellers are not able Chiron's calculation of any adjustment to the Purchase Price applicable thereto. (c) If Chiron receives the Disagreement Notice, Chiron and the Purchaser shall, in good faith, attempt to resolve their disagreements and objections with respect the disagreement within 20 business days after Chiron's receipt of the Disagreement Notice. If they cannot resolve the disagreement within such time period, then (i) Chiron or the Purchaser, as applicable, shall promptly pay any net amount owed to the Closing Balance Sheet within thirty other party that is not in disagreement (30i.e., net of any offsetting liability), and (ii) days after Sellers deliver the Closing Balance Sheet parties promptly shall refer such disagreement for resolution to Buyers, then the issues in dispute will be submitted to the Denver, Colorado office of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, or if ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP is unable to serve or declines to act, or if at the time of such referral ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP is not independent certified public of each of the Purchaser and Chiron, such other firm of independent accountants of recognized national standing as mutually selected by the Purchaser and Chiron (such firm being referred to herein as the "AccountantsDeciding Accountant") for resolution). If issues in dispute are submitted The determination of the Deciding Accountant as to the Accountants for resolutioncalculation and amount of any adjustment to the Purchase Price shall be rendered within 30 calendar days after such disagreement is referred to the Deciding Accountant, and shall be binding upon the parties hereto. (id) each party will Each of the Purchaser and Chiron shall furnish to the Accountants Deciding Accountant, at its own cost and expense, such work papers and other documents and information relating as the Deciding Accountant may request, and each party may also furnish to the disputed issues Deciding Accountant such other information and documents as the Accountants may request and are available it deems relevant, in all cases with copies (where it would not be unreasonably costly or burdensome to that party provide copies) or its Subsidiaries notification (or its independent public accountants), and will be afforded the opportunity to present with reasonable rights of access) being given to the Accountants any material relating other party. The fees and expenses payable to the determination and to discuss the determination with the Accountants; and (ii) in addition to the material submitted in subparagraph (i) above, the Accountants Deciding Accountant shall consider compliance be borne one-half by the Sellers in the operation of the businesses of the Acquired Companies under the standard of the Ordinary Course of Business. The determination Purchaser and one-half by the Accountants, as set forth in a notice delivered to both parties by the Accountants, will be binding and conclusive on the parties. Buyers and Sellers shall each bear 50% of the fees of the Accountants for such determinationChiron. (ce) Upon finalization The Closing Date Balance Sheet as agreed to by the parties or as determined by the Deciding Accountant, and the Closing Date Net Assets reflected thereon, shall be binding on the parties and thereafter be the "Closing Date Balance Sheet" and the "Closing Date Net Assets", respectively, for all purposes of this Agreement. The later of the date on which the parties agree upon the Closing Date Balance Sheet and the calculation of the Combined Working Capital of the Acquired Companies in accordance with Sections 1.6(a) or 1.6(b), any adjustment to the Combined Working Capital Purchase Price or the date on which would have the Deciding Accountant renders its decision with respect thereto shall be called the "Final Settlement Date". (f) Within 10 business days after the Final Settlement Date, (i) if the Purchase Price paid at the Closing is to be increased, the Purchaser shall pay to Chiron the Upward Purchase Price Adjustment to the extent not previously paid via wire transfer to an effect on account of Chiron identified in writing by Chiron, and (ii) if the amount Purchase Price paid at the Closing is to be decreased, Chiron shall pay to the Purchaser the Downward Purchase Price Adjustment to the extent not previously paid via wire transfer to an account of the Working Capital Payment, should be reflected Purchaser identified in writing by the revision Purchaser. (g) Any adjustments to the Purchase Price required by application of the amount of the Working Capital Note including the interest accruals thereon. In the event of such a revision, the Working Capital Note issued as of the Closing Date this Section 1.5 shall be retired and replaced in its entirety by a Working Capital Note allocated among the Net Assets in the amount same manner as determined under this the allocation of Purchase Price required by Section 1.6(c) within ten (10) days after receiving the Accountants' binding determination6.9.

Balance Sheet. (a) Within fifteen (15) days following Attached hereto as Exhibit "M" is a true, correct and complete copy of the Closing Date, Sellers shall prepare and deliver to Buyers a combined unaudited balance sheet effective of the Company for the fiscal year ended December 31, 2002, which fairly presents on a consistent basis the financial position of the Company as of the Closing Date (date thereof, subject to year-end audit adjustments and to the "Closing Balance Sheet")qualification that it does not contain footnotes in accordance with generally accepted accounting principles, and there have been no material adverse changes in the financial condition of the Company since December 31, 2002. The attached balance sheet includes as a related combined statement "liability" accrued taxes the payment of income which is the responsibility of the Tenant under the Leases. The attached balance sheet also includes as "other assets" a prepaid insurance expense for insurance premiums which will be eliminated at Closing because the period beginning September 1insurance policies currently maintained by the Company will be canceled as of the date of Closing, 2001 and ending Purchaser will cause the Company to obtain new insurance policies from and after the Closing. All other items shown on the balance sheet as a "liability" either (i) are the subject of prorations between Seller and Purchaser in accordance with Section 5.4 of this Agreement or (ii) will be discharged by the Company with Company funds at or prior to the Closing. The representations and warranties made in this Agreement by Seller shall be continuing and shall be deemed remade by Seller as of the Closing Date, with the same force and effect as if made on, and as of, such date, subject to Seller's right to update such representations and warranties by written notice to Purchaser and in Seller's certificate to be delivered pursuant to Section 5.1(c) hereof. Except for the representations and warranties set forth in subparagraphs (p) through (t) of the Acquired Companiesthis Section 4.1, showing the final status each of all assets and liabilities (including Combined Working Capital) as of which shall survive the Closing Date and the results for a period of its operations for the periods then endedthree (3) years, all prepared representations and warranties made in accordance with GAAP. The this Agreement by Seller shall survive the Closing Balance Sheet for a period of one (1) year, and upon expiration thereof shall be reviewed by the Buyers and, if the Buyers have any objections of no further force or effect except to the Closing Balance Sheet, Buyers and Sellers shall work reasonably and in good faith to resolve such objections. (b) If Buyers and Sellers are not able to resolve their disagreements and objections extent that with respect to any particular alleged breach, Purchaser gives Seller written notice prior to the Closing Balance Sheet expiration of said one (1) year period or three (3) year period, as the case may be, of such alleged breach with reasonable detail as to the nature of such breach and files an action against Seller with respect thereto within thirty ninety (3090) days after Sellers deliver the Closing Balance Sheet to Buyers, then the issues in dispute will be submitted giving of such notice. Notwithstanding anything to the Denvercontrary contained in this Section 4.1, Colorado office Seller shall have no liability to Purchaser for the breach of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇any representation or warranty made in this Agreement or in the Seller's Certificate unless the loss resulting from Seller's breach of its representations and warranties exceeds, LLP independent certified public accountants in the aggregate, Fifty Thousand and No/100 Dollars (the "Accountants") for resolution. If issues in dispute are submitted to the Accountants for resolution, (i) each party will furnish to the Accountants such work papers and other documents and information relating to the disputed issues as the Accountants may request and are available to that party or its Subsidiaries (or its independent public accountants$50,000.00 U.S.), in which event Seller shall be liable for each dollar of damages resulting from the breach or breaches of its representations and will be afforded the opportunity to present to the Accountants warranties, but in no event shall Seller's total liability for any material relating to the determination and to discuss the determination with the Accountants; and (ii) in addition to the material submitted in subparagraph (i) abovesuch breach or breaches exceed, the Accountants shall consider compliance by the Sellers in the operation of the businesses of the Acquired Companies under the standard of the Ordinary Course of Businessaggregate, One Million and No/100 Dollars ($1,000,000.00 U.S.). The determination preceding sentence shall be inapplicable to a breach by the Accountants, as Seller of any representation or warranty of Seller set forth in subparagraphs (p) through (t) of this Section 4.1 or in Section 10.1 hereof. In no event shall Seller be liable for, nor shall Purchaser seek, any consequential, indirect or punitive damages; and in no event shall any claim for a notice breach of any representation or warranty of Seller be actionable or payable if the breach in question results from or is based on a condition, state of facts or other matter which was known to Purchaser prior to the Closing. Except as otherwise expressly provided in this Agreement or in any documents to be executed and delivered by Seller to both parties Purchaser at the Closing, Seller has not made, and Purchaser has not relied on, any information, promise, representation or warranty, express or implied, regarding the Membership Interests or the Property, whether made by Seller, by the AccountantsCompany, will be binding and conclusive on Seller's or the parties. Buyers and Sellers shall each bear 50% Company's behalf or otherwise, including, without limitation, the physical condition of the fees Property, the financial condition of the Accountants for such determination. (c) Upon finalization Tenant under the Leases, title to or the boundaries of the Closing Balance Sheet Property, pest control matters, soil conditions, the presence, existence or absence of hazardous wastes, toxic substances or other environmental matters, compliance with building, health, safety, land use and the calculation zoning laws, regulations and orders, structural and other engineering characteristics, traffic patterns, market data, economic conditions or projections, past or future economic performance of the Combined Working Capital of Tenant or the Acquired Companies in accordance with Sections 1.6(a) or 1.6(b)Property, and any adjustment other information pertaining to the Combined Working Capital Property or the market and physical environments in which would have an effect on the amount of the Working Capital Payment, should be reflected by the revision of the amount of the Working Capital Note including the interest accruals thereon. In the event of such a revision, the Working Capital Note issued as of the Closing Date shall be retired and replaced in its entirety by a Working Capital Note in the amount as determined under this Section 1.6(c) within ten (10) days after receiving the Accountants' binding determination.Property is

Balance Sheet. Seller and its accountants shall permit Buyer to review all accounting records and work papers and computations used by them in the preparation of the Preliminary Balance Sheet. If Buyer does not provide Seller with written notice of a dispute concerning the Preliminary Balance Sheet (a"Notice of Dispute") Within fifteen (15) within 30 days following after Buyer's receipt of the Preliminary Balance Sheet, then the Preliminary Balance Sheet shall constitute the Closing DateBalance Sheet for purposes of this Agreement notwithstanding any subsequent audit of Seller's financial statements covering the period from January 1, Sellers 1998 through the Closing Date to be performed by Benn▇▇▇ ▇▇▇ Katz, ▇▇C. If Buyer provides Seller with written notice of a dispute within the aforementioned 30-day period, then, for a period of 30 days thereafter (the "Review Period"), Buyer and Seller shall prepare and deliver endeavor in good faith to Buyers a combined balance sheet effective as reach agreement on the form of the Closing Date (the "Closing Balance Sheet"), . If Buyer and a related combined statement Seller are unable to reach agreement during the Review Period on the form of income for the period beginning September 1, 2001 and ending as of the Closing Date, of the Acquired Companies, showing the final status of all assets and liabilities (including Combined Working Capital) as of the Closing Date and the results of its operations for the periods then ended, all prepared in accordance with GAAP. The Closing Balance Sheet shall be reviewed by the Buyers and, if the Buyers have any objections to the Closing Balance Sheet, Buyers then the dispute shall be submitted to an independent public accounting firm mutually agreeable to Buyer and Sellers Seller, which public accounting firm shall work reasonably resolve any and in good faith to resolve such objections. (b) If Buyers and Sellers are not able to resolve their disagreements and objections all disputes with respect to the Closing Balance Sheet Sheet. If Buyer and Seller are unable to agree upon an independent public accounting firm to be selected to resolve the dispute, they shall each name one firm and the two firms so named shall choose a third independent public accounting firm which shall resolve the dispute. Such determination shall be made within thirty (30) 60 days after Sellers deliver the Closing Balance Sheet to Buyers, then the issues in dispute will be is submitted to the Denver, Colorado office of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, LLP independent certified public accountants (the "Accountants") for resolution. If issues in dispute are submitted to the Accountants for resolution, (i) each party will furnish to the Accountants such work papers and other documents and information relating to the disputed issues as the Accountants may request and are available to that 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 accounting firm in accordance with the Accountants; terms of this section and (ii) in addition to the material submitted in subparagraph (i) above, the Accountants shall consider compliance by the Sellers be final and binding upon Buyer and Seller in the operation absence of the businesses of the Acquired Companies under the standard of the Ordinary Course of Businessmanifest error. The Buyer and Seller shall bear equally all fees and costs associated with any determination by the Accountants, as set forth in a notice delivered pursuant to both parties by the Accountants, will be binding and conclusive on the parties. Buyers and Sellers shall each bear 50% of the fees of the Accountants for such determination. (c) Upon finalization this section of the Closing Balance Sheet and the calculation of the Combined Working Capital of the Acquired Companies in accordance with Sections 1.6(a) or 1.6(b), any adjustment to the Combined Working Capital which would have by an effect on the amount of the Working Capital Payment, should be reflected by the revision of the amount of the Working Capital Note including the interest accruals thereonindependent public accounting firm. In the event of such a revision, the Working Capital Note issued The final balance sheet dated as of the Closing Date shall be retired and replaced in its entirety by a Working Capital Note in is referred to herein as the amount as determined under this Section 1.6(c) within ten (10) days after receiving the Accountants' binding determination"Closing Balance Sheet."

Balance Sheet. Within forty-five (a) Within fifteen (1545) days following the Closing DateClosing, Sellers Agent shall prepare and deliver furnish to Buyers Foodbrands a combined balance sheet effective as of the Closing Date (the "Closing Date Balance Sheet") for the Company, which balance sheet shall reflect: (1) The inventory shall be valued based on the results of the physical inventory taken pursuant to Section 5.15(a), and (2) Accounts receivable, and a related combined statement of income for the period beginning September 1applicable reserves, 2001 shall be valued and ending as of determined in accordance with the Closing Dateprocedures set forth in Schedule 3.12; provided, of the Acquired Companies, showing the final status of all assets and liabilities (including Combined Working Capital) review shall be performed as of the Closing Date and accounts will be written off to the results extent they are determined to be less then 100% collectible. (3) All employee bonuses, dividends and distributions whether paid or payable before or after the Closing and the settlement of its operations for accounts with affiliates shall be reflected in the periods then ended, all prepared balance sheet. (4) All normal and customary accruals shall be determined in accordance with GAAP, consistently applied. Seller shall deliver with the Closing Date Balance Sheet (i) an accounting reflecting the calculation of the Adjusted Closing Purchase Price, and (ii) a detailed statement of Net Working Capital (the "Statement of Net Working Capital") prepared from the Closing Date Balance Sheet. The Statement of Net Working Capital shall be audited and confirmed by the Company's current certified public accountant as to its accuracy and compliance with this Agreement, at Seller's expense. Foodbrands shall then have a period of time not exceeding thirty days after its receipt of the Closing Date Balance Sheet in which to examine such accounting, during which time Foodbrands and Agent shall be reviewed by fully cooperate each with the Buyers andother to resolve disputes, if any. In the Buyers have any objections to the Closing Balance Sheet, Buyers event that Foodbrands and Sellers shall work reasonably and in good faith Agent are unable to resolve such objections. (b) If Buyers and Sellers are not able any dispute involved in the determination of the Adjusted Closing Purchase Price, the payment required to resolve their disagreements and objections be made with respect to the Adjusted Closing Balance Sheet within thirty (30) days after Sellers deliver the Closing Balance Sheet to Buyers, then the issues in Purchase Price as herein described shall be delayed until such dispute will be submitted to the Denver, Colorado office of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, LLP independent certified public accountants (the "Accountants") for resolution. If issues in dispute are submitted to the Accountants for resolution, (i) each party will furnish to the Accountants such work papers and other documents and information relating to the disputed issues as the Accountants may request and are available to that 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; and (ii) in addition to the material submitted in subparagraph (i) above, the Accountants shall consider compliance have been settled by the Sellers in the operation of the businesses of the Acquired Companies under the standard of the Ordinary Course of Business. The determination by the Accountants, as set forth in a notice delivered to both parties by the Accountants, will be binding and conclusive on the parties. Buyers and Sellers shall each bear 50% of the fees of the Accountants for such determination. (c) Upon finalization of the Closing Balance Sheet and the calculation of the Combined Working Capital of the Acquired Companies arbitration in accordance with Sections 1.6(a) or 1.6(b), any adjustment to the Combined Working Capital which would have an effect on the amount of the Working Capital Payment, should be reflected by the revision of the amount of the Working Capital Note including the interest accruals thereon. In the event of such a revision, the Working Capital Note issued as of the Closing Date shall be retired and replaced in its entirety by a Working Capital Note in the amount as determined under this Section 1.6(c) within ten (10) days after receiving the Accountants' binding determination15.16.

Balance Sheet. (a) Within fifteen (15) 30 days following after the Closing Date, Sellers shall Seller will prepare and deliver present to Buyers Buyer a combined balance sheet effective as of the Closing Date (the "Closing Proposed June 30 Balance Sheet"), and a related combined statement of income for the period beginning September 1, 2001 and ending ) setting forth as of June 30, 1997 the Closing Date, book value of the Acquired Companies, showing the final status of all assets and liabilities (including Combined Working Capital) as of the Closing Date Transferred Assets and the results of its operations for the periods then ended, all prepared in accordance with GAAPAssumed Liabilities. The Closing Proposed June 30 Balance Sheet shall be reviewed prepared so that it presents fairly the book value of the Transferred Assets and Assumed Liabilities in accordance with GAAP (or on a basis consistent with prior practices of Seller with the disclosure that such practice is not GAAP), but in any case using practices and procedures and applying the types of adjustments described in Schedule 2.6(b) consistent with the preparation of the May 31 Balance Sheet. Seller's Auditors shall perform selected procedures as agreed to by Buyer and Seller (the Buyers and, if the Buyers have any objections "Agreed Upon Procedures") with respect to the Closing Proposed June 30 Balance Sheet. Buyer and Buyer's Auditors shall have the right to review and copy, Buyers and Sellers shall work reasonably and promptly upon request, the workpapers of Seller's Auditors (the "Workpapers") utilized in good faith performing the Agreed Upon Procedures with respect to resolve such objections.the Proposed June 30 Balance Sheet. The Proposed June (b) If Buyers The fees and Sellers are not able to resolve their disagreements disbursements of Seller's Auditors shall be paid by Seller and objections with respect to the Closing Balance Sheet within thirty (30) days after Sellers deliver fees and disbursements of Buyer's Auditors shall be paid by Buyer. The fees and disbursements of the Closing Balance Sheet to BuyersFirst Choice or the Selected Firm, then the issues in dispute will be submitted to the Denver, Colorado office of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, LLP independent certified public accountants (the "Accountants") for resolution. If issues in dispute are submitted to the Accountants for resolution, (i) each party will furnish to the Accountants such work papers and other documents and information relating to the disputed issues as the Accountants case may request be, shall be paid by Buyer and are available to that party Seller as the First Choice or the Selected Firm, as the case may be, shall determine based upon 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; and (ii) in addition to the material submitted in subparagraph (i) above, the Accountants shall consider compliance by the Sellers in the operation assessment of the businesses relative merits of the Acquired Companies under the standard of the Ordinary Course of Business. The determination positions taken by the Accountants, as set forth each in a notice delivered any disagreement presented to both parties by the Accountants, will be binding and conclusive on the parties. Buyers and Sellers shall each bear 50% of the fees of the Accountants for such determinationfirm. (c) Upon finalization of the Closing Balance Sheet and the calculation of the Combined Working Capital of the Acquired Companies in accordance with Sections 1.6(a) or 1.6(b), any adjustment to the Combined Working Capital which would have an effect on the amount of the Working Capital Payment, should be reflected by the revision of the amount of the Working Capital Note including the interest accruals thereon. In the event of such a revision, the Working Capital Note issued as of the Closing Date shall be retired and replaced in its entirety by a Working Capital Note in the amount as determined under this Section 1.6(c) within ten (10) days after receiving the Accountants' binding determination.

Balance Sheet. (a) Within fifteen (15) Failure to notify the Company and the Preparing Party of an Objection shall constitute acceptance and approval of such Preliminary Closing Balance Sheet. The Parties shall then have 30 days following the Closing Datedate the Preparing Party receives any Objection (including, Sellers shall prepare and deliver if later, any additional objection made pursuant to Buyers a combined balance sheet effective as the proviso of the Closing Date second preceding sentence) to review and respond to such Objection. If the Parties do not resolve all of their disagreements with respect to the foregoing by the 30th day following the Preparing Party’s receipt of an Objection (including, if later, any additional objection made pursuant to the proviso of the third preceding sentence), they shall refer their remaining differences to a nationally recognized firm of independent public accountants as to which the Parties shall mutually agree (the "“CPA Firm”), who shall, acting as experts in accounting and not as arbitrators, determine on a basis consistent with the requirements of Section 2.10(a), and only with respect to the specific remaining accounting-related differences set forth in the applicable Objection and so submitted to the CPA Firm, whether and to what extent, if any, the relevant Preliminary Closing Balance Sheet(s) require(s) adjustment in order to comply with the provisions of Section 2.10(a). In the event that Objections are pending with respect to both Preliminary Closing Balance Sheets, the Parties shall submit all such Objections to the same CPA Firm to be considered and resolved at the same time. The Parties shall request the CPA Firm to use its best efforts to render its determination within 45 days of its engagement. The CPA Firm’s determination shall be conclusive and binding upon the Company and the Parties. The Company and the Parties shall make reasonably available to the CPA Firm and to each other all relevant books and records, any work papers (including those of the Parties’ respective accountants) and supporting documentation relating to the Preliminary Closing Balance Sheets and all other items reasonably requested by the CPA Firm or the other Party in connection herewith. The “Final Closing Balance Sheet"), and a related combined statement of income for the period beginning September 1, 2001 and ending as ” of the Closing DateCitigroup Introducing Business and Citigroup Delayed Contribution Business or the Morgan Stanley Introducing Business and Morgan Stanley Delayed Contribution Business, of as the Acquired Companiescase may be, showing shall be (i) the final status of all assets and liabilities (including Combined Working Capital) as of the Closing Date and the results of its operations for the periods then ended, all prepared in accordance with GAAP. The applicable Preliminary Closing Balance Sheet shall be reviewed by if (x) no Objection is delivered during the Buyers andinitial 60-day period (or, if applicable, the Buyers have any objections to subsequent 15 day period) specified above or (y) the Parties so agree, (ii) the applicable Preliminary Closing Balance Sheet, Buyers and Sellers shall work reasonably and in good faith to resolve such objections. (b) If Buyers and Sellers are not able to resolve their disagreements and objections with respect to the Closing Balance Sheet within thirty (30) days after Sellers deliver the Closing Balance Sheet to Buyers, then the issues in dispute will be submitted to the Denver, Colorado office of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, LLP independent certified public accountants (the "Accountants") for resolution. If issues in dispute are submitted to the Accountants for resolution, (i) each party will furnish to the Accountants such work papers and other documents and information relating to the disputed issues as the Accountants may request and are available to that 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; and (ii) in addition to the material submitted in subparagraph (i) above, the Accountants shall consider compliance by the Sellers in the operation of the businesses of the Acquired Companies under the standard of the Ordinary Course of Business. The determination by the Accountants, as set forth in a notice delivered to both parties by the Accountants, will be binding and conclusive on the parties. Buyers and Sellers shall each bear 50% of the fees of the Accountants for such determination. (c) Upon finalization of the Closing Balance Sheet and the calculation of the Combined Working Capital of the Acquired Companies adjusted in accordance with Sections 1.6(athe Objection, in the event that (x) or 1.6(b), any adjustment the Preparing Party does not respond to the Combined Working Capital which would have an effect on Objection during the amount 30-day period specified above following receipt of the Working Capital PaymentObjection or (y) the Parties so agree, should be reflected or (iii) the applicable Preliminary Closing Balance Sheet, as adjusted pursuant to the agreement of the Parties or as adjusted by the revision CPA Firm as provided above. All fees and disbursements of the amount of the Working Capital Note including the interest accruals thereon. In the event of such a revision, the Working Capital Note issued as of the Closing Date CPA Firm shall be retired and replaced in its entirety shared equally by a Working Capital Note in the amount as determined under this Section 1.6(c) within ten (10) days after receiving the Accountants' binding determinationParties.

Balance Sheet. (a) Within fifteen (15) days following On the Closing Date, Sellers Borrower shall prepare and deliver to Buyers GTA-IB a combined balance sheet effective of Borrower to be dated as of the Closing Date, and which shall have been approved in writing by GTA-IB in its sole discretion, (and attached to this Agreement as Schedule 7.2(a)) reflecting, in all material respects (i.e., material respects shall mean an amount exceeding Twenty Thousand Dollars ($20,000) in the aggregate), the assets and liabilities of Borrower related to the Property, including, without limitation, all real property taxes and real property tax appeal consequences (including, without limitation, all related reasonably and actually incurred legal fees) that have accrued or become payable with respect to the period prior to the Closing Date, and which contains detailed schedules of the line items shown thereon as of the Closing Date (together with all footnotes and schedules thereto, as approved in writing by GTA-IB in its sole discretion, the "“Closing Date Balance Sheet"”). The Closing Date Balance Sheet shall reflect the then current assets and liabilities. It shall be a condition of Lender’s obligations to consummate the transactions set forth in this Agreement and to execute and deliver the Conveyance Documents that (i) all cash flow generated from the operation of the Property from and after May 31, 2002 shall have been used by Borrower and a related combined statement of income Resort Manager, subject to Section 7.2(b) hereof, for the period beginning September 1benefit of the Property or Lender, 2001 and ending (ii) Borrower shall deliver to Lender on the Closing Date the Closing Date Balance Sheet of Borrower dated as of the Closing Date which (A) accurately reflects, in all material respects, the financial condition of the Property as of the Closing Date, (B) has been approved by GTA-IB, in its sole, reasonable discretion, on or before the Closing Date, and (C) which has been countersigned by an authorized representative of each of the Acquired Companiesparties hereto, showing (iii) the final status of all assets Closing Date Balance Sheet shall reflect that the amount due and liabilities payable to Resort Manager shall not exceed Four Hundred Thirty-Four Thousand Dollars (including Combined Working Capital$434,000) (i.e., the amount accruing prior to January 1, 2002, and unpaid as of the Closing Date) and any then earned fees and unpaid amounts owed to the Resort Manager, (iv) the Closing Date and the results of its operations for the periods then ended, all prepared in accordance with GAAP. The Closing Balance Sheet shall be reviewed state that the then current amount owed by Borrower to Resort Manager pursuant to that certain Agreement Re Guaranty of Funds dated as of May 7, 1997 between Borrower and Resort Manager (the Buyers and“Resort Manager Guaranty”) equals no more than Ten Million Two Hundred Sixty-Five Thousand Dollars ($10,265,000) (which shall include amounts advanced by Resort Manager as described in Section 7.2 (b) (ii)). Furthermore, if the Buyers have any objections real property taxes and/or real property tax appeal consequences (including, without limitation, all related reasonably and actually incurred legal fees) related to the period from January 1, 1998 through May 31, 2002, inclusive, accrue or become payable before or after the Closing Balance SheetDate (the “Real Property Taxes and Consequences”), Buyers subject to the Indemnified Amount limitation described in Section 10.3(c), Borrower and Sellers Guarantor shall work be jointly and severally obligated to pay the same and shall jointly and severally indemnify, defend and hold harmless each of the GTA Parties, from and against any and all such Real Property Taxes and Consequences, including, without limitation, penalties, fines, interest, legal fees, etc., and any other related costs, expenses (including, without limitation, legal fees, penalties, interest and other directly related reasonably and actually incurred third-party costs, which amounts shall not exceed, in good faith to resolve such objectionsthe aggregate, One Million Thirty Thousand Nine Hundred Dollars ($1,030,900) (collectively, the “Indemnified Tax Amount”). (b) If Buyers Lender recognizes, acknowledges, agrees and Sellers consents that in order for Borrower to meet the requirements of Section 7.2 (a), (i) until the Closing Date, Borrower shall direct and permit Resort Manager to apply cash flow from the Resort Property to the payment of amounts that are not able due and owing from Borrower to resolve their disagreements and objections Resort Manager for services rendered by the Resort Manager with respect to the Closing Balance Sheet within thirty (30) days after Sellers deliver the Closing Balance Sheet to Buyers, then the issues in dispute will be submitted Resort Property only and payable pursuant to the Denver, Colorado office express terms of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, LLP independent certified public accountants the Management Contract (other than amounts due Resort Manager arising from payments by Resort Manager under the "Accountants"Resort Manager Guaranty) for resolution. If issues in dispute are submitted to the Accountants for resolution, (i) each party will furnish to the Accountants such work papers and other documents and information relating to the disputed issues as the Accountants may request and are available to that 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; and (ii) in addition Resort Manager shall, during 2002, have advanced One Million Two Hundred Fifty Thousand Dollars ($1,250,000) pursuant to the material submitted in subparagraph (i) aboveResort Manager Guaranty, which amount is reflected on the Accountants shall consider compliance by the Sellers in the operation Closing Date Balance Sheet as having been applied to pay a portion of the businesses of the Acquired Companies under the standard of the Ordinary Course of Business. The determination by the Accountants, as set forth in a notice delivered amounts due and owing to both parties by the Accountants, will be binding and conclusive on the parties. Buyers and Sellers shall each bear 50% of the fees of the Accountants for such determinationResort Manager. (c) Upon finalization of the Closing Balance Sheet and the calculation of the Combined Working Capital of the Acquired Companies in accordance closing hereunder, (i) Borrower shall have no liability with Sections 1.6(arespect to (i) any obligations arising on or 1.6(b), any adjustment to the Combined Working Capital which would have an effect on the amount of the Working Capital Payment, should be reflected by the revision of the amount of the Working Capital Note including the interest accruals thereon. In the event of such a revision, the Working Capital Note issued as of after the Closing Date in connection with the ownership and operation of the Property, and (ii) those liabilities set forth or provided for on the Closing Date Balance Sheet or otherwise in this Agreement. Nothing contained in this Agreement or in the Defense and Escrow Agreement shall be retired and replaced deemed an assumption by GTA-IB of any liabilities relating to the ownership, operation or maintenance of the Property prior to the Closing Date other than with respect to those that are expressly included or provided for on the Closing Date Balance Sheet pursuant to Section 7.2(a) hereof or otherwise in its entirety by a Working Capital Note in the amount as determined under this Section 1.6(c) within ten (10) days after receiving the Accountants' binding determinationAgreement.

Balance Sheet. (a) Within fifteen (15) days following the Closing Date, Sellers shall prepare and deliver to Buyers a combined balance sheet effective 3.5.1 As soon as of practicable after the Closing Date (but not later than 60 days after the Closing Date), Buyer will prepare, and cause its regularly engaged independent accountants or another firm of accountants not reasonably objected to by Seller ("CPA's) to audit and report upon the balance sheet of the Seller at the close of business on the Adjustment Date. Such balance sheet shall be referred to herein as the "Closing Balance Sheet")." Except as specifically provided herein, and a related combined statement of income for the period beginning September 1, 2001 and ending as of the Closing Date, of the Acquired Companies, showing the final status of all assets and liabilities (including Combined Working Capital) as of the Closing Date and the results of its operations for the periods then ended, all Balance Sheet will be prepared in accordance with GAAPgenerally accepted accounting principles consistent with the accounting principles, practices and assumptions utilized by the Company in the preparation of its audited balance sheet at December 31, 1997 and the related notes thereto, attached hereto as Exhibit 5.10. The Closing Balance Sheet shall will include only those items transferred to or assumed by Buyer pursuant hereto. The inventory reflected on the Closing Balance Sheet will be reviewed based on a physical inventory taken on or about the Adjustment Date by Seller and observed by CPA's (at Buyer's expense). Seller will cooperate with Buyer and CPA's in facilitating the Buyers andpreparation and audit of the Closing Balance Sheet. 3.5.2 Immediately after the audit of the Closing Balance Sheet has been completed, if Buyer will compute the Buyers have any objections to Long Term Debt, Current Assets and Current Liabilities as of the Adjustment Date. 3.5.3 Buyer's computation of the cash portion of the consideration, based on the Closing Balance Sheet, Buyers and Sellers shall work reasonably and be delivered to the Company in good faith writing no later than 30 days after the Closing (the "Closing Consideration Statement"). During the 25-day period following the Seller's receipt of the Closing Consideration Statement, the Seller's accountants will be permitted to resolve such objections. (b) If Buyers and Sellers are not able to resolve their disagreements and objections with respect review the audit working papers of CPA's relating to the Closing Balance Sheet within thirty (30) days after Sellers deliver and will have access to Buyer's personnel as may be reasonably necessary in connection therewith and, in general, Buyer will cooperate with the Seller and the Seller's accountants in facilitating such review. The Closing Consideration Statement shall become final and binding upon the parties on the twenty-fifth day following the Seller's receipt thereof unless the Seller gives written notice of its disagreement as to the Closing Balance Sheet or the Closing Consideration Statement ("Notice of Disagreement") to Buyers, Buyer prior to such date. Any Notice of Disagreement shall specify in reasonable detail the nature of any disagreement so asserted. If a Notice of Disagreement is received by Buyer in a timely manner then the issues Closing Consideration Statement shall become final and binding upon the parties on the earlier of (x) the date the parties hereto resolve in writing all differences they have with respect to any matter specified in the Notice of Disagreement and (y) the date all disputed matters are finally resolved in writing by the Arbitrators or Third Arbitrator, as the case may be (as such terms are defined in Section 3.5.4). The Closing Consideration Statement that becomes final and binding on the parties in accordance with the terms of this Section is referred to herein as the "Final Closing Statement." Notwithstanding Buyer's computation of the Long Term Debt, Current Assets and Current Liabilities, and the resulting Final Closing Statement, in no event shall the cash portion of the Purchase Price be less than $9,000,000 minus the Long Term Debt and plus or minus the Current Net Worth Adjustment. 3.5.4 During the 15-day period following the delivery of any Notice of Disagreement, the parties hereto shall attempt to resolve in writing any differences which they may have with respect to any matter specified in any Notice of Disagreement. If, at the end of such 15-day period, the parties have not reached agreement on such matters, either Buyer or the Seller shall submit the matters which remain in dispute will be submitted to the Denver, Colorado office of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, LLP independent certified public accountants arbitrators (the "AccountantsArbitrators"), for review and resolution. The Arbitrators shall be two persons or entities with offices in Chicago, Illinois, one of which shall be selected by each of Buyer and the Seller. If within 20 days of receipt by the Arbitrators of the matters which remain in dispute, the Arbitrators have failed to resolve such matters, the Arbitrators shall mutually agree upon a third person or entity with offices in Chicago, Illinois (the "Third Arbitrator") for resolution. If issues in dispute are submitted to the Accountants for resolution, (i) each party will furnish to the Accountants such work papers review and other documents and information relating to resolve the disputed issues as the Accountants may request and are available to that 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; and (ii) in addition to the material submitted in subparagraph (i) above, the Accountants shall consider compliance by the Sellers in the operation matters. The decision of the businesses of the Acquired Companies under the standard of the Ordinary Course of Business. The determination by the Accountants, as set forth in a notice delivered Third Arbitrator with respect to both parties by the Accountants, will all disputed matters shall be final and binding and conclusive on the parties. 3.5.5 The fees of each Arbitrator shall be borne by the party selecting such person or entity. Buyers The fees of the Third Arbitrator, if any, shall be borne fifty percent by the Seller and Sellers fifty percent by Buyer. The fees of CPA's incurred in connection with the audit of the Closing Balance Sheet and in any arbitration shall each bear 50% of be borne by Buyer, and the fees of the Accountants for such determination. (c) Upon finalization Seller's accountants incurred in connection with their review of the Closing Balance Sheet and the calculation Closing Consideration Statement and in any arbitration shall be borne by the Seller. 3.5.6 If the cash consideration reflected on the Final Closing Statement exceeds the cash consideration paid at Closing, then Buyer will pay to the Seller, on the tenth day after the determination of the Combined Working Capital of Final Closing Statement (the Acquired Companies in accordance with Sections 1.6(a) or 1.6(b"Payment Date"), any adjustment an amount equal to such excess. If the Combined Working Capital which would have an effect cash consideration shown on the Final Closing Statement is less than the cash consideration paid at Closing, then Seller will pay to Buyer, on the Payment Date, an amount of the Working Capital Payment, should be reflected by the revision of the amount of the Working Capital Note including the interest accruals thereonequal to such excess. In the event of such a revision, the Working Capital Note issued as of the Closing Date shall be retired and replaced in its entirety by a Working Capital Note in the amount as determined Any payment under this Section 1.6(c) within ten (10) days after receiving the Accountants' binding determinationshall be made by certified or official bank check.

Balance Sheet. As of a date prior to the Closing Date, the Company shall cause to be prepared a statement of financial position listing the assets owned and the liabilities owed of Shaker Auto Group and the New England Subsidiaries, determined as if such entities were the only members of a controlled group of corporations on such date and excluding therefrom the assets owned and the liabilities owed of the Company not attributable to Shaker Auto Group and the New England Subsidiaries (a) the "Interim Balance Sheet"). The Interim Balance Sheet shall fairly present, in all material respects, the assets and liabilities of Shaker Auto Group and the New England Subsidiaries as at the date thereof. Within fifteen sixty (1560) days following the Closing Date, Sellers the Company and the Shaker Group shall prepare jointly perform such reasonable "true-up" procedures to the Interim Balance Sheet as they may reasonably agree to prior to the Closing Date to establish the financial position of Shaker Auto Group and deliver the New England Subsidiaries as of the Closing Date. Such procedures shall take into account, among other things: (a) information made available to Buyers the Company and the Shaker Group after the Closing Date regarding inventory in transit or located at seller locations as of the Closing Date; (b) the payment of invoices by Shaker Auto Group and the New England Subsidiaries through to and including the Closing Date; and (c) the quantification of the sale and purchase of inventory through to and including the Closing Date. As a combined balance sheet effective result of such "true-up" procedures, the Company and the Shaker Group shall cause to be prepared a final statement of financial position listing the assets owned and the liabilities owed of Shaker Auto Group and the New England Subsidiaries as of the Closing Date (the "Closing Final Balance Sheet"), and a related combined statement of income for the period beginning September 1, 2001 and ending as of the Closing Date, of the Acquired Companies, showing the final status of all assets and liabilities (including Combined Working Capital) as of the Closing Date and the results of its operations for the periods then ended, all prepared in accordance with GAAP. The Closing Final Balance Sheet shall be reviewed by deemed to be the Buyers and, if the Buyers have any objections to the Closing Balance Sheet, Buyers and Sellers shall work reasonably and in good faith to resolve such objections. (b) If Buyers and Sellers are not able to resolve their disagreements and objections with respect to the Closing Balance Sheet within thirty (30) days after Sellers deliver for all purposes of this Agreement, including but not limited to making the Closing Balance Sheet to Buyers, then the issues in dispute will be submitted to the Denver, Colorado office of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, LLP independent certified public accountants (the "Accountants") for resolution. If issues in dispute are submitted to the Accountants for resolution, (i) each party will furnish to the Accountants such work papers and other documents and information relating to the disputed issues as the Accountants may request and are available to that party or its Subsidiaries (or its independent public accountantsadjustments required by Section 2.1.2(f), Section 2.1.2(g) 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; and (ii) in addition to the material submitted in subparagraph (i) above, the Accountants shall consider compliance by the Sellers in the operation of the businesses of the Acquired Companies under the standard of the Ordinary Course of Business. The determination by the Accountants, as set forth in a notice delivered to both parties by the Accountants, will be binding and conclusive on the parties. Buyers and Sellers shall each bear 50% of the fees of the Accountants for such determinationSection 2.1.2(h). (c) Upon finalization of the Closing Balance Sheet and the calculation of the Combined Working Capital of the Acquired Companies in accordance with Sections 1.6(a) or 1.6(b), any adjustment to the Combined Working Capital which would have an effect on the amount of the Working Capital Payment, should be reflected by the revision of the amount of the Working Capital Note including the interest accruals thereon. In the event of such a revision, the Working Capital Note issued as of the Closing Date shall be retired and replaced in its entirety by a Working Capital Note in the amount as determined under this Section 1.6(c) within ten (10) days after receiving the Accountants' binding determination.