THE SINGULAR INCLUDE THE PLURAL, (B) REFERENCES TO ANY GENDER
INCLUDE THE OTHER GENDERS, (C) THE WORDS "INCLUDE," "INCLUDES" AND "INCLUDING"
DO NOT LIMIT THE PRECEDING TERMS OR WORDS AND WILL BE DEEMED TO BE FOLLOWED BY
THE WORDS "WITHOUT LIMITATION", (D) THE TERMS "HEREOF," "HEREIN," "HEREUNDER,"
"HERETO" AND SIMILAR TERMS IN THIS AGREEMENT REFER TO THIS AGREEMENT AS A WHOLE
AND NOT TO ANY PARTICULAR PROVISION OF THIS AGREEMENT, (E) THE TERMS "DAY" AND
"DAYS" MEAN AND REFER TO CALENDAR DAY(S) AND (F) THE TERMS "YEAR" AND "YEARS"
MEAN AND REFER TO CALENDAR YEAR(S).
UNLESS OTHERWISE SET FORTH HEREIN,
REFERENCES IN THIS AGREEMENT TO (A) ANY DOCUMENT, INSTRUMENT OR AGREEMENT
(INCLUDING THIS AGREEMENT) INCLUDE (1) ALL DOCUMENTS, INSTRUMENTS OR AGREEMENTS
ISSUED OR EXECUTED IN REPLACEMENT THEREOF AND (2) SUCH DOCUMENT, INSTRUMENT OR
AGREEMENT, OR REPLACEMENT OR PREDECESSOR THERETO, AS AMENDED, MODIFIED OR
SUPPLEMENTED FROM TIME TO TIME IN ACCORDANCE WITH ITS TERMS AND IN EFFECT AT ANY
GIVEN TIME, AND (B) A PARTICULAR LAW (AS HEREINAFTER DEFINED) MEANS SUCH LAW AS
AMENDED, MODIFIED, SUPPLEMENTED OR SUCCEEDED, FROM TIME TO TIME AND IN EFFECT
THROUGH THE CLOSING DATE.
ALL ARTICLE, SECTION, EXHIBIT AND SCHEDULE REFERENCES
HEREIN ARE TO ARTICLES, SECTIONS, EXHIBITS AND SCHEDULES OF THIS AGREEMENT,
UNLESS OTHERWISE SPECIFIED.
THIS AGREEMENT WILL NOT BE CONSTRUED AS IF PREPARED
BY ONE OF THE PARTIES, BUT RATHER ACCORDING TO ITS FAIR MEANING AS A WHOLE, AS
IF ALL PARTIES HAD PREPARED IT.
ALL ACCOUNTING TERMS NOT SPECIFICALLY DEFINED
HEREIN WILL BE CONSTRUED IN ACCORDANCE WITH GAAP.
2.
COMPUTATION OF CASH COLLECTIONS.
2.1
CALCULATION OF CASH COLLECTIONS.
WITHIN 15
DAYS FOLLOWING THE COMPLETION OF PURCHASER'S AUDIT FOR EACH OF 2008, 2009 AND
2010, BUT IN NO EVENT LATER THAN 90 DAYS FOLLOWING THE END OF EACH SUCH FISCAL
YEAR OF PURCHASER, PURCHASER SHALL DELIVER TO SELLER ITS CALCULATIONS OF THE
CASH COLLECTIONS FOR SUCH AUDITED YEAR, TOGETHER WITH REASONABLE DETAIL TO
SUPPORT SUCH CALCULATIONS (SUCH CALCULATIONS SHALL BE REFERRED TO HEREIN
INDIVIDUALLY EACH AS A "CASH COLLECTIONS CALCULATION" OR THE "2008 CASH
COLLECTIONS CALCULATION," "2009 CASH COLLECTIONS CALCULATION" AND "2010 CASH
COLLECTIONS CALCULATION," AS APPLICABLE).
NO LATER THAN THE DATE THAT THE 2010
CASH COLLECTIONS CALCULATION MUST BE DELIVERED BY PURCHASER TO SELLER AS
2
SET FORTH HEREIN, PURCHASER SHALL ALSO DELIVER ITS CALCULATION OF THE CUMULATIVE
CASH COLLECTIONS CALCULATION TO SELLER, TOGETHER WITH REASONABLE DETAIL TO
SUPPORT SUCH CALCULATION.
2.2
OBJECTION BY SELLER.
WITHIN FIFTEEN (15)
DAYS FOLLOWING RECEIPT OF THE CUMULATIVE CASH COLLECTIONS CALCULATION, SELLER
MAY OBJECT TO THE CUMULATIVE CASH COLLECTIONS CALCULATION BY GIVING WRITTEN
NOTICE TO PURCHASER SETTING FORTH THE REASONS FOR SELLER'S OBJECTION AND
SELLER'S PROPOSED ADJUSTMENTS TO PURCHASER'S CALCULATION ("SELLER'S
OBJECTION").
IF SELLER FAILS TO OBJECT TO THE CUMULATIVE COLLECTIONS
CALCULATION WITHIN SUCH FIFTEEN (15) DAY PERIOD, SELLER WILL BE DEEMED TO HAVE
CONCLUSIVELY AGREED WITH AND SHALL BE BOUND BY THE CUMULATIVE CASH COLLECTIONS
CALCULATION FOR THE PURPOSES OF THIS SECTION 2, AND SUCH CUMULATIVE CASH
COLLECTIONS CALCULATION WILL BE USED FOR CALCULATING THE EARNOUT