Common use of Adjustments to Consideration Clause in Contracts

Adjustments to Consideration. (a) All operating revenues and related accounts receivable, and all prepaid utility charges, taxes, rentals and any other prepaid expenses, arising from the ownership and operation of the Assigned Assets as of the end of the Accounting Effective Date shall, except as otherwise expressly provided herein, be adjusted and allocated between the Assignors and SXE to reflect the principle that all operating revenues and related accounts receivable, and all prepaid utility charges, taxes, rentals and any other prepaid expenses, arising from the ownership and operation of the Assigned Assets before or on the Accounting Effective Date shall be for the account of the Assignors and all operating revenues and related accounts receivable, and all prepaid utility charges, taxes, rentals and any other prepaid expenses, arising from the ownership and operation of the Assigned Assets from and after the Accounting Effective Date shall be for the account of the applicable SXE Subsidiary. (b) To the extent not inconsistent with the express provisions of this Agreement, the allocations made pursuant to this Section 2.8 shall be made in accordance with GAAP. (c) Net settlement of the adjustments contemplated under this Section 2.8 shall be made at the Closing, if feasible. For items not readily subject to ascertainment at the Closing, the following procedures shall apply. The Assignors shall prepare and deliver to SXE in good faith within 30 Business Days following the Effective Date, or such earlier or later date as shall be mutually agreed to by the Assignors and SXE, an itemized list (the “Adjustment List”) of all sums that are an increase or decrease to the Consideration pursuant to this Section 2.8, with a brief explanation thereof. Such list shall show the net amount of the increase or decrease to the Consideration (the “Adjustment Amount”). If the Adjustment Amount is a decrease to the Consideration, the Assignors shall pay such amount to SXE in cash; if the Adjustment Amount is an increase to the Consideration, SXE shall pay such amount to the Assignors in cash (or deliver to the Assignors (or their designee) a number of Common Units having a value equal to such amount, as mutually agreed by SXE and the Assignors). Unless disputed, payment of the Adjustment Amount (or, with respect to SXE as applicable, delivery of Common Units sufficient to cover the Adjustment Amount pursuant to the immediately preceding sentence) shall be made not later than ten Business Days following the delivery of the Adjustment List. (d) The Adjustment List (to the extent not disputed) and any mutually agreed written settlement of any such dispute concerning the Adjustment List shall be final, conclusive and binding on the Parties absent manifest error. (e) Any payments made pursuant to this Section 2.8 shall be treated as an adjustment to the Consideration by the Parties for Tax purposes, unless otherwise required by Law.

Adjustments to Consideration. (a) All operating revenues The Nominal Consideration shall be subject to adjustment as follows: (i) if (x) the current assets of the Company and related accounts receivablethe Subsidiaries excluding cash, marketable securities and cash equivalents, minus (y) the current liabilities of the Company and the Subsidiaries (including without limitation all Company Transaction Expenses) but excluding that portion of Funded Indebtedness included in current liabilities, determined (with the exception of such adjustments required by the provisions of the last sentence of this SECTION 3.4(a)) in accordance with generally accepted accounting principles applied consistently with the past practices of the Company, subject to normal, recurring year-end adjustments as if the Company's and the Subsidiaries' fiscal year-end ended on the Closing Date (as so determined, the "ADJUSTED WORKING CAPITAL") immediately prior to the Effective Time prior to giving effect to the Merger, is less than $13,893,000 (the "TARGET WORKING CAPITAL"), the Nominal Consideration shall be reduced by an amount equal to such deficiency; and (ii) if the Adjusted Working Capital immediately prior to the Effective Time prior to giving effect to the Merger is in excess of the Target Working Capital, the Nominal Consideration shall be increased by an amount equal to such excess. The amount of such adjustment to the Nominal Consideration is hereinafter referred to as the "ADJUSTMENT AMOUNT." By way of illustration, the Adjusted Working Capital of the Company and its Subsidiaries, determined in the manner required in this SECTION 3.3(a) based on the Unaudited Financial Statements, was $14,055,000 as set forth on Annex III attached hereto, in which case the Adjustment Amount would be $162,000 if August 31, 1997 were the Closing Date, and all prepaid utility chargesthe Nominal Consideration would be increased by such amount. Notwithstanding the foregoing provisions of this Section 3.4, taxesParent and the Company agree that, rentals for purposes of determining the Adjustment Amount, current liabilities shall include the items set forth on ANNEX IV attached hereto in the amounts as determined in accordance with Annex IV. (b) Not less than five (5) business days prior to the Closing Date, the Company shall deliver to Parent a consolidated balance sheet for Company and any other prepaid expenses, arising from the ownership and operation of the Assigned Assets Subsidiaries as of the end of the Accounting Effective Date shallmost recent interim accounting period (the "PRE-CLOSING BALANCE SHEET"), except as otherwise expressly provided herein, be adjusted and allocated between the Assignors and SXE to reflect the principle that all operating revenues and related accounts receivable, and all prepaid utility charges, taxes, rentals and any other prepaid expenses, arising from the ownership and operation together with a calculation of the Assigned Assets before Adjustment Amount determined based upon the Pre-Closing Balance Sheet (the "ESTIMATED ADJUSTMENT AMOUNT"). The Target Working Capital as increased or on decreased by the Accounting Effective Date Estimated Adjustment Amount is referred to herein as the "ADJUSTED TARGET WORKING CAPITAL." The Pre-Closing Balance Sheet shall be for the account of the Assignors and all operating revenues and related accounts receivable, and all prepaid utility charges, taxes, rentals and any other prepaid expenses, arising from the ownership and operation of the Assigned Assets from and after the Accounting Effective Date shall be for the account of the applicable SXE Subsidiary. (b) To the extent not inconsistent with the express provisions of this Agreement, the allocations made pursuant to this Section 2.8 shall be made prepared in accordance with GAAPthe same conditions as are applicable to the preparation of the Interim Balance Sheet, as described in SECTION 4.1.4 below, subject to the adjustments set forth in SECTION 3.4(a) above, including the reference therein to ANNEX IV. (c) Net settlement In the event that there is any difference between the Estimated Adjustment Amount and the Adjustment Amount (as calculated pursuant to SECTION 3.5 below), the amount of such difference shall be paid to Parent in the event that the Adjusted Working Capital is less than the Adjusted Target Working Capital or by Parent in the manner directed by the Stockholder Agents for disbursement to the Stockholders in accordance with the Exchange Agreement in the event that the Adjusted Working Capital is more than the Adjusted Target Working Capital, in accordance with this SECTION 3.4(c). (i) Any amount to be paid to Parent on behalf of the adjustments contemplated under this Section 2.8 Stockholders hereunder shall be made satisfied out of the Adjustment Escrow Amount, PROVIDED that if the amount in the Adjustment Escrow Fund is less than the amount required to be paid to Parent hereunder, then such additional amount shall be satisfied out of the Indemnity Escrow Fund (without regard to the limitation set forth in Section 8.2(b)(iii)) by certified check or by wire transfer of such amount from the Escrow Agent at the Closing, if feasible. For items not readily subject same time the amount in the Adjustment Escrow Fund is transferred to ascertainment at Parent from the Closing, Adjustment Escrow Fund. (ii) To the following procedures shall apply. The Assignors shall prepare and deliver to SXE in good faith within 30 Business Days following the Effective Date, or such earlier or later date as shall be mutually agreed to by the Assignors and SXE, an itemized list (the “Adjustment List”) of all sums extent that are an increase or decrease Parent owes additional consideration to the Consideration Stockholders pursuant to this Section 2.8SECTION 3.4(c), with a brief explanation thereof. Such list shall show the net amount of the increase or decrease to the Consideration (the “Adjustment Amount”). If the Adjustment Amount is a decrease to the Consideration, the Assignors Parent shall pay such amount to SXE by certified check or wire transfer of funds in cash; if the Adjustment Amount is an increase to manner directed by the Consideration, SXE shall pay such amount to Stockholder Agent on or before the Assignors in cash (or deliver to fifth business day following the Assignors (or their designee) a number of Common Units having a value equal to such amount, as mutually agreed by SXE and the Assignors). Unless disputed, payment final determination of the Adjustment Amount (or, with respect to SXE as applicable, delivery of Common Units sufficient to cover the Adjustment Amount pursuant under SECTION 3.5(c) hereof for disbursement to the immediately preceding sentence) shall be made not later than ten Business Days following Stockholders in the delivery of manner directed by the Adjustment ListStockholder Agent. (diii) The Adjustment List After satisfaction of any payment obligation to Parent pursuant to clause (i) above and the payment to the extent not disputed) and Independent Accountant, if any, of certain expenses pursuant to SECTION 3.5(c), any mutually agreed written settlement of any such dispute concerning amount remaining in the Adjustment List Escrow Fund shall be final, conclusive and binding on disbursed by the Parties absent manifest error. (e) Any payments made pursuant to this Section 2.8 shall be treated as an adjustment Adjustment Escrow Agent in the manner directed by the Stockholder Agent for distribution to the Consideration by Stockholders of the Parties for Tax purposes, unless otherwise required by LawCompany in accordance with the Exchange Agreement.

Adjustments to Consideration. All adjustments to the Consideration shall be determined and (if applicable) paid as set forth in this Section 2.3. (a) All operating revenues and related accounts receivable, and all prepaid utility charges, taxes, rentals and any other prepaid expenses, arising from the ownership and operation of the Assigned Assets as of the end of the Accounting Effective Date shall, except as otherwise expressly provided herein, be adjusted and allocated between the Assignors and SXE to reflect the principle that all operating revenues and related accounts receivable, and all prepaid utility charges, taxes, rentals and any other prepaid expenses, arising from the ownership and operation of the Assigned Assets before or on the Accounting Effective Date The Consideration shall be for increased by the account of amount, if any, by which the Assignors and all operating revenues and related accounts receivableSpecified Current Assets are greater than the Specified Current Liabilities (such excess amount, and all prepaid utility chargesif any, taxes, rentals and any other prepaid expenses, arising from the ownership and operation of the Assigned Assets from and after the Accounting Effective Date shall be for the account of the applicable SXE Subsidiary“Specified Net Current Asset Difference”). (b) To Within 90 days after the extent not inconsistent with Closing Date, Purchaser shall prepare and deliver to Parent Purchaser’s calculation of the express provisions Specified Current Assets and the Specified Current Liabilities (such delivery, the “Purchaser Calculation”). Without limiting any other obligation of Parent or Seller under this Agreement, Parent and Seller will make available or cause to be made available to Purchaser and its Representatives upon reasonable notice and at reasonable times all personnel and information necessary to assist Purchaser and its Representatives in connection with the allocations made pursuant preparation of the Purchaser Calculation. Parent shall have 45 days from the date Purchaser delivers the Purchaser Calculation to this Section 2.8 Parent (such period, the “Dispute Period”) to notify Purchaser, in writing, as to whether Parent agrees or disagrees with the Purchaser Calculation, which such notice shall identify in reasonable detail those items and amounts to which Parent objects, the reasons therefor and Parent’s proposed calculation of the Specified Current Assets and the Specified Current Liabilities and the portion, if any, of the Purchaser Calculation that Parent does not dispute (such written notice, the “Dispute Notice”). During the Dispute Period, Parent and its accountants shall be made permitted to review (during regular business hours and upon reasonable prior notice) the working papers of Purchaser and (where applicable) Purchaser’s accountants to the extent relating to the matters set forth in accordance the Purchaser Calculation, in each case as is reasonably requested in writing by Parent. If Parent fails to deliver a Dispute Notice to Purchaser during the Dispute Period, Purchaser’s calculation of the Specified Current Assets and the Specified Current Liabilities shall be deemed to be final and correct and shall be binding upon all parties. If Parent delivers a Dispute Notice to Purchaser with GAAPrespect to some, but not all, of the amounts or items included in the Purchaser Calculation during the Dispute Period, then Parent shall be deemed to have agreed with Purchaser’s calculations of all amounts set forth in such Purchaser Calculation that were not disputed in such duly and timely delivered Dispute Notice. (c) Net settlement If Parent delivers a Dispute Notice to Purchaser during the Dispute Period, Parent and Purchaser shall, for a period of 30 days from the adjustments contemplated under this Section 2.8 shall be made at date the Closing, if feasible. For items not readily subject Dispute Notice is delivered to ascertainment at the ClosingPurchaser (such period, the following procedures shall apply. The Assignors shall prepare and deliver to SXE “Resolution Period”), negotiate in good faith within 30 Business Days following and use commercially reasonable efforts to amicably resolve the Effective Date, or such earlier or later date as items in dispute. Any items so resolved shall be mutually agreed deemed to by the Assignors be final and SXE, an itemized list (the “Adjustment List”) of all sums that are an increase or decrease to the Consideration pursuant to this Section 2.8, with a brief explanation thereof. Such list correct as so resolved and shall show the net amount be binding upon each of the increase or decrease to the Consideration (the “Adjustment Amount”). If the Adjustment Amount is a decrease to the Consideration, the Assignors shall pay such amount to SXE in cash; if the Adjustment Amount is an increase to the Consideration, SXE shall pay such amount to the Assignors in cash (or deliver to the Assignors (or their designee) a number of Common Units having a value equal to such amount, as mutually agreed by SXE and the Assignors). Unless disputed, payment of the Adjustment Amount (or, with respect to SXE as applicable, delivery of Common Units sufficient to cover the Adjustment Amount pursuant to the immediately preceding sentence) shall be made not later than ten Business Days following the delivery of the Adjustment Listparties hereto. (d) The Adjustment List (If Parent and Purchaser are unable in good faith to resolve all of the items in dispute during the Resolution Period, then, upon the expiration of the Resolution Period or such earlier date as Purchaser and Parent mutually agree, either Purchaser or Parent may refer the items remaining in dispute in writing to the extent Independent Accounting Firm and shall deliver to the Independent Accounting Firm, at the time of such referral, the Purchaser Calculation and the Dispute Notice. Within five Business Days after referral of the matter to the Independent Accounting Firm, Purchaser and Parent shall agree on the procedures to be followed by the Independent Accounting Firm (including procedures with regard to presentation of evidence). Such procedures shall not disputedalter the accounting policies, practices and principles to be applied to the calculation of the Specified Current Assets and the Specified Current Liabilities, which will be those required by this Agreement. If Purchaser and Parent are unable to agree upon such procedures before the end of five Business Days after referral of the dispute to the Independent Accounting Firm, the Independent Accounting Firm shall establish such procedures giving due regard to the intention of Purchaser and Parent to resolve disputes as quickly, efficiently and inexpensively as possible, which procedures may be, but need not be, those proposed by Purchaser or Parent. The parties shall also furnish the Independent Accounting Firm with such other information and documents as the Independent Accounting Firm may reasonably request in order for it to resolve the items in dispute. Parent and Purchaser shall also, within 20 days of the date the items in dispute are referred to the Independent Accounting Firm, provide the Independent Accounting Firm with a written statement (a “Position Statement”) describing in reasonable detail their respective positions on the items in dispute (copies of which will be provided by the Independent Accounting Firm to the other party after such time, if any, that both parties have delivered a Position Statement to the Independent Accounting Firm). If any party fails to timely deliver its Position Statement to the Independent Accounting Firm, the Independent Accounting Firm shall resolve the items in dispute solely upon the basis of the information otherwise provided to it. The Independent Accounting Firm shall resolve all disputed items in a written determination to be delivered to Purchaser and Parent within 30 days after such matter is referred to it; provided, however, that any mutually agreed written settlement delay in delivering such determination shall not invalidate such determination or deprive the Independent Accounting Firm of jurisdiction to resolve the items in dispute; provided, further, that, in resolving any such dispute concerning disputed item, the Adjustment List Independent Accounting Firm shall adhere to the definitions contained in this Agreement and the practices and other principles referred to herein. In no event shall the Independent Accounting Firm assign a value to the Specified Net Current Asset Difference that is greater than the highest or less than the lowest calculation thereof proposed by Purchaser in the Purchaser Calculation and Parent in the Dispute Notice. The decision of the Independent Accounting Firm, acting as an expert and not as an arbitrator, shall be final, conclusive final and binding upon the parties hereto and shall not be subject to judicial review. The fees and expenses of the Independent Accounting Firm shall be borne by Parent, on the Parties absent manifest errorone hand, and Purchaser, on the other hand, in equal portions, unless the Independent Accounting Firm decides, based on its determination with respect to the reasonableness of the respective positions of the parties, that the fees and expenses shall be borne in unequal proportions. (e) Any payments made pursuant Within seven days after the final determination of the Specified Current Assets and the Specified Current Liabilities and the calculation of any Specified Net Current Asset Difference (whether through failure of Parent to timely deliver a Dispute Notice, agreement of the parties or determination of the Independent Accounting Firm), if there is a positive Specified Net Current Asset Difference, then Purchaser shall pay such Specified Net Current Asset Difference to Seller in immediately available funds via wire transfer (in which case there shall be an immediate upward adjustment of the Consideration in such amount); provided, however, that Purchaser shall pay any portion of such Specified Net Current Asset Difference (i) not earlier than the final determination of such Specified Net Current Asset Difference, (ii) only after such time that CNAC and its Subsidiaries have received payment of trade accounts receivable of CNAC and its Subsidiaries reflected in the Specified Current Assets up to the dollar amount whereby the Specified Net Current Asset Difference would have been zero (such dollar amount, the “Base Receivables”) and (iii) once the threshold in Section 2.3(e)(ii) is met, only as and when (and to the extent) CNAC and its Subsidiaries have received payment of trade accounts receivable of CNAC and its Subsidiaries reflected in the Specified Current Assets in an amount exceeding the Base Receivables (such amount exceeding the Base Receivables, the “Collected Receivables”). In order to effectuate the payment of any Specified Net Current Asset Difference, Purchaser agrees (A) to use efforts to collect such Collected Receivables that are not materially less than the efforts it otherwise employs to collect the Base Receivables or other trade accounts receivable of the Business, (B) that, with respect to any amounts collected by CNAC and its Subsidiaries from any payor that has trade accounts receivable reflected in the Specified Current Assets, for purposes of this Section 2.8 shall be treated as an adjustment to the Consideration by the Parties for Tax purposes2.3, such amounts shall, unless otherwise required expressly provided by the payor, be attributable to the Specified Current Assets prior to being attributed to any trade accounts receivable that are not Specified Current Assets, (C) to remit to Seller, on a weekly basis commencing the week following the final determination of any Specified Net Current Asset Difference, the amount of the Base Receivables and the Collected Receivables, and (D) to provide to Seller, concurrent with any such remittance of Collected Receivables, a list setting forth in respect of such Collected Receivables (x) the payor of each portion of such Collected Receivables and (y) the amount of Collected Receivables paid by each such payor. (f) The dispute resolution procedures set forth in this Section 2.3 are the sole and exclusive means and remedy for determining and calculating the Specified Current Assets, the Specified Current Liabilities and any Specified Net Current Asset Difference and the components thereof, other than in the event of fraud or willful misconduct, in which case the aggrieved party shall be entitled to such other rights and remedies as are permitted by applicable Law.