Common use of Post-Closing Consideration Clause in Contracts

Post-Closing Consideration. (a) During the six-month period beginning on the Closing Date (the “Earn-Out Period”), HSE shall, no later than thirty (30) days following the end of each calendar month included therein (beginning with the first full calendar month immediately following the Closing), prepare and deliver to the Representative, on behalf of Transferor and the Affiliated Transferors, a written calculation of Adjusted EBITDA for such immediately preceding calendar month (the “EBITDA Report”). In the event the Representative, on behalf of Transferor and the Affiliated Transferors, does not deliver written notice to HSE objecting to the calculation of Adjusted EBITDA set forth in the applicable EBITDA Report within ten (10) Business Days following receipt thereof, then the Representative, on behalf of Transferor and the Affiliated Transferors, shall be deemed to have accepted such EBITDA Report and waived any objection to the calculations of Adjusted EBITDA set forth therein. In the event the Representative, on behalf of Transferor and the Affiliated Transferors, deliver such a written objection notice to HSE within such ten (10) Business Days, the Parties shall work in good faith to resolve any such disputes. In the event any such disputes are not resolved by the Parties within thirty (30) days, such dispute shall be referred to the Referee who shall resolve any such dispute. The Referee shall be provided such work papers and other documents and information relating to the dispute as are reasonably requested by the Referee (subject to any confidentiality agreement required by HSE). The Referee shall be instructed to make his determination within thirty (30) days of submittal thereto. The decision of the Referee, absent manifest error, shall be binding on the Parties. (b) In the event the Adjusted EBITDA in any single calendar month during the Earn-Out Period (as finally determined pursuant to Section 2.3(a) above) exceeds Three Million Three Hundred Thirty-Three Thousand Three Hundred Thirty-Three Dollars ($3,333,333), then HSE shall cause to be paid to Transferor and the other Affiliated Transferors (pro rata in accordance with the percentages set forth on Section 2.3 of the Transferor Disclosure Schedule) an aggregate amount in cash equal to (i) the amount by which the highest monthly Adjusted EBITDA during the Earn-Out Period exceeds Three Million Three Hundred Thirty-Three Thousand Three Hundred Thirty-Three Dollars ($3,333,333) times (ii) Seventy-Two (72) (the “Actual Earn-Out Amount”); provided, in no event shall the aggregate amount payable to Transferor and the other Affiliated Transferors pursuant to this Section 2.3(b) and the Affiliate Transfer Agreements be deemed to exceed the Maximum Holdback Earn-Out Amount. The Actual Earn-Out Amount shall be paid by HSE to Transferor and the other Affiliated Transferors in accordance with this Section 2.3(b) in immediately available funds to such accounts as the Transferor and the other Affiliated Transferors may designate; provided that any such payment shall occur within fifteen (15) calendar days of the first to occur of (y) such date that it is finally determined (in accordance with subsection (a) above) that an EBITDA Report reflects that the Actual Earn-Out Amount equals or exceeds the Maximum Holdback Earn-Out Amount and (z) the final EBITDA Report of the Earn-out Period is finally determined (in accordance with subsection (a) above). With respect to any portion of the Maximum Holdback Earn-Out Amount remaining after payment of the Actual Earn-Out Amount, neither NGL nor HSE shall have any further obligation, and Transferor and the other Affiliated Transferors shall have no further right or claim, with respect to such excess amount which shall remain the property of HSE. Any amounts payable hereunder shall be allocated pro rata among Transferor and the other Affiliated Transferors in accordance with the percentages set forth on Section 2.3 of the Transferor Disclosure Schedule; provided all such amounts shall be subject to the offset rights set forth in Section 7.6.

Post-Closing Consideration. (a) During the six-month period beginning on the Closing Date (the “Earn-Out Period”), HSE shall, no later than thirty (30) days following the end of each calendar month included therein (beginning with the first full calendar month immediately following the Closing), prepare and deliver to the Representative, on behalf of Transferor Transferors and the Affiliated Transferors, a written calculation of Adjusted EBITDA for such immediately preceding calendar month (the “EBITDA Report”). In the event the Representative, on behalf of Transferor Transferors and the Affiliated Transferors, does not deliver written notice to HSE objecting to the calculation of Adjusted EBITDA set forth in the applicable EBITDA Report within ten (10) Business Days following receipt thereof, then the Representative, on behalf of Transferor Transferors and the Affiliated Transferors, shall be deemed to have accepted such EBITDA Report and waived any objection to the calculations of Adjusted EBITDA set forth therein. In the event the Representative, on behalf of Transferor Transferors and the Affiliated Transferors, deliver such a written objection notice to HSE within such ten (10) Business Days, the Parties shall work in good faith to resolve any such disputes. In the event any such disputes are not resolved by the Parties within thirty (30) days, such dispute shall be referred to the Referee who shall resolve any such dispute. The Referee shall be provided such work papers and other documents and information relating to the dispute as are reasonably requested by the Referee (subject to any confidentiality agreement required by HSE). The Referee shall be instructed to make his determination within thirty (30) days of submittal thereto. The decision of the Referee, absent manifest error, shall be binding on the Parties. (b) In the event the Adjusted EBITDA in any single calendar month during the Earn-Out Period (as finally determined pursuant to Section 2.3(a) above) exceeds Three Million Three Hundred Thirty-Three Thousand Three Hundred Thirty-Three Dollars ($3,333,333), then HSE shall cause to be paid to Transferor Transferors and the other Affiliated Transferors (pro rata in accordance with the percentages set forth on Section 2.3 of the Transferor Disclosure Schedule) an aggregate amount in cash equal to (i) the amount by which the highest monthly Adjusted EBITDA during the Earn-Out Period exceeds Three Million Three Hundred Thirty-Three Thousand Three Hundred Thirty-Three Dollars ($3,333,333) times (ii) Seventy-Two (72) (the “Actual Earn-Out Amount”); provided, in no event shall the aggregate amount payable to Transferor Transferors and the other Affiliated Transferors pursuant to this Section 2.3(b) and the Affiliate Transfer Agreements be deemed to exceed the Maximum Holdback Earn-Out Amount. The Actual Earn-Out Amount shall be paid by HSE to Transferor Transferors and the other Affiliated Transferors in accordance with this Section 2.3(b) in immediately available funds to such accounts as the Transferor Transferors and the other Affiliated Transferors may designate; provided that any such payment shall occur within fifteen (15) calendar days of the first to occur of (y) such date that it is finally determined (in accordance with subsection (a) above) that an EBITDA Report reflects that the Actual Earn-Out Amount equals or exceeds the Maximum Holdback Earn-Out Amount and (z) the final EBITDA Report of the Earn-out Period is finally determined (in accordance with subsection (a) above). With respect to any portion of the Maximum Holdback Earn-Out Amount remaining after payment of the Actual Earn-Out Amount, neither NGL nor HSE shall have any further obligation, and Transferor Transferors and the other Affiliated Transferors shall have no further right or claim, with respect to such excess amount which shall remain the property of HSE. Any amounts payable hereunder shall be allocated pro rata among Transferor Transferors and the other Affiliated Transferors in accordance with the percentages set forth on Section 2.3 of the Transferor Disclosure Schedule; provided all such amounts shall be subject to the offset rights set forth in Section 7.6. All amounts paid to OWL under this Section 2.3(a) shall be paid to such Person on behalf of the OWL Partners as contemplated by Section 2.1(a)(i).

Post-Closing Consideration. (a) During the six-month period beginning on the Closing Date (the “Earn-Out Period”), HSE (on behalf of HST) shall, no later than thirty (30) days following the end of each calendar month included therein (beginning with the first full calendar month immediately following the Closing), prepare and deliver to the Representative, on behalf of Transferor Transferors and the Affiliated Transferors, a written calculation of Adjusted EBITDA for such immediately preceding calendar month (the “EBITDA Report”). In the event the Representative, on behalf of Transferor Transferors and the Affiliated Transferors, does not deliver written notice to HSE objecting to the calculation of Adjusted EBITDA set forth in the applicable EBITDA Report within ten (10) Business Days following receipt thereof, then the Representative, on behalf of Transferor Transferors and the Affiliated Transferors, shall be deemed to have accepted such EBITDA Report and waived any objection to the calculations of Adjusted EBITDA set forth therein. In the event the Representative, on behalf of Transferor Transferors and the Affiliated Transferors, deliver such a written objection notice to HSE within such ten (10) Business Days, the Parties shall work in good faith to resolve any such disputes. In the event any such disputes are not resolved by the Parties within thirty (30) days, such dispute shall be referred to the Referee who shall resolve any such dispute. The Referee shall be provided such work papers and other documents and information relating to the dispute as are reasonably requested by the Referee (subject to any confidentiality agreement required by HSE). The Referee shall be instructed to make his determination within thirty (30) days of submittal thereto. The decision of the Referee, absent manifest error, shall be binding on the Parties. (b) In the event the Adjusted EBITDA in any single calendar month during the Earn-Out Period (as finally determined pursuant to Section 2.3(asubsection (a) above) exceeds Three Million Three Hundred Thirty-Three Thousand Three Hundred Thirty-Three Dollars ($3,333,333), then HSE (on behalf of HST) shall cause to be paid to Transferor Transferors and the other Affiliated Transferors (pro rata in accordance with the percentages set forth on Section 2.3 of the Transferor Disclosure Schedule) an aggregate amount in cash equal to (i) the amount by which the highest monthly Adjusted EBITDA during the Earn-Out Period exceeds Three Million Three Hundred Thirty-Three Thousand Three Hundred Thirty-Three Dollars ($3,333,333) times (ii) Seventy-Two (72) (the “Actual Earn-Out Amount”); provided, in no event shall the aggregate amount payable to Transferor Transferors and the other Affiliated Transferors pursuant to this Section 2.3(bsubsection (b) and the Affiliate Transfer Agreements be deemed to exceed the Maximum Holdback Earn-Out Amount. The Actual Earn-Out Amount shall be paid by HSE to Transferor Transferors and the other Affiliated Transferors in accordance with this Section 2.3(b) in immediately available funds to such accounts as the Transferor Transferors and the other Affiliated Transferors may designate; provided that any such payment shall occur within fifteen (15) calendar days of the first to occur of (y) such date that it is finally determined (in accordance with subsection (a) above) that an EBITDA Report reflects that the Actual Earn-Out Amount equals or exceeds the Maximum Holdback Earn-Out Amount and (z) the final EBITDA Report of the Earn-out Period is finally determined (in accordance with subsection (a) above). With respect to any portion of the Maximum Holdback Earn-Out Amount remaining after payment of the Actual Earn-Out Amount, neither NGL nor HSE shall have any further obligation, and Transferor Transferors and the other Affiliated Transferors shall have no further right or claim, with respect to such excess amount which shall remain the property of HSE. Any amounts payable hereunder shall be allocated pro rata among Transferor Transferors and the other Affiliated Transferors in accordance with the percentages set forth on Section 2.3 of the Transferor Disclosure Schedule; provided all such amounts shall be subject to the offset rights set forth in Section 7.6. All amounts paid to the Transferors under this Section 2.3(b) shall be paid to such person on behalf of the OWL Partners as contemplated by Section 2.1(a)(i).