Common use of Pre-Closing Adjustments Clause in Contracts

Pre-Closing Adjustments. No later than three (3) Business Days prior to the Closing Date, the Company will prepare and deliver to the Purchaser a certificate (the “Pre-Closing Statement”) setting forth the Company’s good faith estimate (as of the Closing Date) of (A) the Indebtedness Payoff Amount to be paid pursuant to Section 1.3(b) (the “Estimated Indebtedness”), (B) the estimated aggregate amount of all Transaction Expenses to be paid pursuant to Section 1.3(c) (the “Estimated Transaction Expenses”), (C) the estimated Working Capital (the “Estimated Working Capital”), and (D) the Closing Payment Amount payable to the Paying Agent, for further payment to the Securityholders at the Closing pursuant to Section 1.3(a), based on, among other things, the foregoing clauses (A) through (C). The amount of Closing Payment Amount payable by the Purchaser on the Closing Date shall be based on the amounts set forth in such Pre-Closing Statement (the “Estimated Closing Purchase Amount”). Each of the foregoing calculations will be accompanied by reasonable supporting detail therefor. From and after the delivery of the Pre-Closing Statement, the Company will provide the Purchaser and its Representatives with reasonable access to the financial books and records and other information of the Company or that were used in the preparation of the Pre-Closing Statement that the Purchaser may reasonably request. In the event the Purchaser disagrees with any of the calculations set forth in the Pre-Closing Statement, including the Estimated Working Capital (or any of the components thereof), (y) the Purchaser will notify the Company in writing of such disagreement, setting forth the basis of such disagreement and (z) the Company will consider in good faith the Purchaser’s comments to the Pre-Closing Statement and/or any of the components thereof or calculations therein.

Pre-Closing Adjustments. No later than three (3) Business Days prior to the Closing Date, the Company Seller will prepare and deliver to the Purchaser a certificate (the “Pre-Closing Statement”) signed by a Representative of the Seller setting forth the CompanySeller’s good faith estimate (as of the Closing Date) of (A) the Indebtedness Payoff Amount to be paid pursuant to Section 1.3(b) (the “Estimated Indebtedness”), (B) the estimated aggregate amount of all Transaction Expenses to be paid pursuant to Section 1.3(c) (the “Estimated Transaction Expenses”), (C) the estimated Working Capital (the “Estimated Working Capital”), (D) the estimated amount of Cash (the “Estimated Cash Amount”), and (DE) the Closing Payment Amount payable to the Paying Agent, for further payment to the Securityholders Seller at the Closing pursuant to Section 1.3(a), based on, among other things, the foregoing clauses (A) through (C). The amount of Closing Payment Amount payable by the Purchaser on the Closing Date shall be based on the amounts set forth in such Pre-Closing Statement (the “Estimated Closing Purchase Amount”D). Each of the foregoing calculations will be accompanied by reasonable supporting detail therefor. From and after the delivery of the Pre-Closing Statement, the Company Seller will provide the Purchaser and its Representatives with reasonable access to the financial books and records and other information of the Company or that were used in the preparation of the Pre-Closing Statement that the Purchaser may reasonably request. In the event the Purchaser disagrees with any of the calculations set forth in the Pre-Closing Statement, including the Estimated Working Capital (or any of the components thereof), (y) the Purchaser will notify the Company Seller in writing of such disagreement, setting forth the basis of such disagreement and (z) the Company Seller will consider in good faith the Purchaser’s comments to the Pre-Closing Statement and/or any of the components thereof or calculations therein.

Pre-Closing Adjustments. No later than (a) At least three (3) Business Days prior to the Closing Date, the Company will Seller shall prepare and deliver to the Purchaser a certificate (the “Pre-Closing StatementEstimated Certificate”) setting forth the CompanySeller’s good faith estimate estimates, calculated (to the extent applicable) in accordance with GAAP (as adjusted to reflect indebtedness for non-competition payments included in current maturities of long-term liabilities and long-term other liabilities) as applied by the Company for the past three (3) years, of (i) the Closing Date) of Working Capital (A) the Indebtedness Payoff Amount to be paid pursuant to Section 1.3(b) (the “Estimated IndebtednessNet Working Capital”), (Bii) the estimated aggregate amount of all Funded Debt (“Estimated Funded Debt”), and (iii) Transaction Expenses to be paid pursuant to Section 1.3(c) (the “Estimated Transaction Expenses”). The Estimated Certificate shall include (x) supporting detail for all such amounts and (y) an estimated consolidated balance sheet of the Company and the Wholly Owned Subsidiaries (with an appropriate line-item entry for Victory Propane) as of the Determination Time (without giving effect to the transactions contemplated herein). Following delivery of the Estimated Certificate, (C) Seller will provide Purchaser reasonable access at reasonable times to the estimated personnel, properties, books and records of the Company, for the purpose of assisting the Purchaser in its review of the Estimated Certificate. Prior to the Closing, Seller shall, and shall cause its Affiliates to, reasonably cooperate in good faith to answer any questions raised by Purchaser in connection with its review of the Estimated Certificate in a timely manner. At the Closing, the Base Consideration shall be increased by the amount by which Estimated Net Working Capital exceeds the Target Net Working Capital or decreased by the amount by which the Estimated Net Working Capital is less than the Target Net Working Capital, as the case may be. The Base Consideration, following such adjustment, is referred to herein as the “Estimated Closing Consideration”, and the Estimated Closing Consideration shall be disbursed by Purchaser in accordance with Section 2.2(b). (b) On or before the ninetieth (90th) calendar day following the Closing Date, Purchaser shall cause to be prepared and delivered to Seller a statement (the “Estimated Final Statement”) setting forth Purchaser’s good faith calculations of Closing Working Capital”), Funded Debt and Transaction Expenses. (Dc) the Closing Payment Amount payable The Final Statement delivered to the Paying Agent, for further payment to the Securityholders at the Closing pursuant to Section 1.3(a), based on, among other things, the foregoing clauses (A) through (C). The amount of Closing Payment Amount payable Seller by the Purchaser on the Closing Date shall be based on final, conclusive and binding upon the parties unless Seller, within thirty (30) days after delivery to Seller of the Final Statement, notifies Purchaser in writing that Seller disputes in good faith any of the amounts set forth in therein (such Pre-Closing Statement (the notice, a “Estimated Closing Purchase AmountDispute Notice”). Each The Dispute Notice shall contain a specific list of the foregoing calculations disputed items and, for each individual disputed item, sufficient detail regarding the nature and the basis for such disputed item. Any item or amount with respect to which no dispute is raised in the Dispute Notice will be accompanied by reasonable supporting detail thereforfinal, conclusive and binding on the parties. From and after the delivery of the Pre-Closing Statement, the Company will provide the Purchaser and its Representatives with reasonable access Seller shall in good faith attempt to the financial books and records and other information of the Company or that were used in the preparation of the Pre-Closing Statement that the Purchaser may reasonably request. In the event the Purchaser disagrees with any of the calculations resolve all items set forth in the Pre-Closing StatementDispute Notice, including and if Purchaser and Seller so resolve all such items, then the Estimated Working Capital Final Statement (and the computations of the various items indicated thereon), as amended to the extent necessary to reflect the resolution of the items set forth in the Dispute Notice, shall be conclusive and binding on the parties. If Purchaser and Seller do not reach agreement in resolving all of the items set forth in the Dispute Notice within twenty (20) days after such Dispute Notice is delivered to Purchaser, either Purchaser or Seller may submit the remaining disputed items to a partner at a nationally recognized independent accounting firm which is mutually agreeable to the parties (the “Expert”) for resolution. If Purchaser and Seller cannot agree on the selection of a partner at a nationally recognized independent accounting firm to act as the Expert, the parties shall each choose a partner at a nationally recognized independent accounting firm, who will then mutually choose a different partner at a nationally recognized independent accounting firm to act as the Expert, and such appointment shall be conclusive and binding on the parties. In no event shall the Expert or the Expert’s firm have provided accounting or other services any of the components thereofparties in the five (5) year period prior to the Dispute Notice. Purchaser and Seller shall jointly instruct the Expert that he or she (i) shall act as an expert and not as an arbitrator and (ii) shall review only the disputed items that were specifically identified in the Dispute Notice and that Purchaser and Seller were unable to resolve prior to the appointment of the Expert. Promptly, but no later than twenty (20) days after acceptance of his or her appointment as the Expert, the Expert shall determine, based solely on written submissions by Purchaser and Seller, and not by independent review, only those issues in dispute and shall render a written report as to the resolution of the dispute and the resulting computation of Closing Working Capital, Funded Debt and Transaction Expenses, which shall be conclusive and binding on the parties (except in the case of fraud). In resolving any disputed item, the Expert (yi) shall be bound by the provisions of this Section 2.3 and (ii) may not assign a value to any individual disputed item greater than the greatest value for such item claimed by Purchaser or Seller or less than the smallest value for such item claimed by Purchaser or Seller. The fees, costs and expenses of the Expert shall be borne fifty percent (50%) by the Purchaser will notify and fifty percent (50%) by Seller. (d) If the Company final calculations of Closing Working Capital, Funded Debt and Transaction Expenses, as finally determined in writing accordance with this Section 2.3, results in a determination that: (i) Purchaser underpaid Seller at Closing, then Purchaser shall, within five (5) Business Days following the date on which such underpayment is finally determined, pay to Seller the amount of such disagreementunderpayment; or (ii) Purchaser overpaid Seller at Closing, setting forth then the basis Selling Group shall, within five (5) Business Days following the date on which such overpayment is finally determined, repay to Purchaser the amount of such disagreement and (z) the Company will consider in good faith the Purchaser’s comments to the Pre-Closing Statement and/or any of the components thereof or calculations thereinoverpayment.

Pre-Closing Adjustments. No later than three two (32) Business Days prior to the Closing Date, the Company will Seller shall prepare and deliver to the Purchaser a certificate (the “Pre-Closing Statement”) setting forth the CompanySeller’s good faith estimate (as of the Closing Date) of (A) the Indebtedness Payoff Amount to be paid pursuant to Section 1.3(b) (the “Estimated IndebtednessIndebtedness Amount”), (B) the estimated aggregate amount of all Transaction Expenses Amount to be paid pursuant to Section 1.3(c) (the “Estimated Transaction ExpensesExpenses Amount”), (C) the estimated Closing Bonus Amount to be paid pursuant to Section 1.3(d) (the “Estimated Closing Bonus Amount”), (D) the Cash Amount (the “Estimated Cash Amount”), (E) the Estimated Cash Shortfall Amount, if applicable, (F) the Estimated Cash Surplus Amount, if applicable, (G) the Working Capital Amount (the “Estimated Working CapitalCapital Amount”), (H) the Estimated Working Capital Surplus Amount, if applicable, (I) the Estimated Working Capital Shortfall Amount, if applicable and (DJ) the Closing Payment Amount payable to the Paying Agent, for further payment to the Securityholders Seller at the Closing pursuant to Section 1.3(a), based on, among other things, the foregoing clauses (A) through (C). The amount of Closing Payment Amount payable by the Purchaser on the Closing Date shall be based on the amounts set forth in such Pre-Closing Statement (the “Estimated Closing Purchase Amount”). Each of the foregoing calculations will shall be accompanied by reasonable supporting detail therefor. From and after the delivery details for each of the Pre-Closing Statement, the Company will provide the Purchaser and its Representatives with reasonable access to the financial books and records and other information of the Company or that were used amounts specified in the preparation of the Pre-Closing Statement that the Purchaser may reasonably request. In the event the Purchaser disagrees with any of the calculations set forth in the Pre-Closing Statementimmediately preceding sentence, including the Estimated Working Capital (or any of the components thereof), (y) the Purchaser will notify the Company in writing of such disagreement, and a funds flow statement setting forth the basis payees of all amounts required to be paid by the Purchaser at Closing pursuant to Sections 1.3, together with wire instructions for each such disagreement and payee (z) such funds flow statement is referred to as the Company will “Funds Flow”). The Seller shall consider in good faith the Purchaser’s any comments to the Pre-Closing Statement and/or any provided by Purchaser or Seller, including with respect to the calculations of the components thereof or calculations amounts set forth therein; provided, however, in no event shall the Closing be delayed as a result of any disagreement between the Seller and the Purchaser with respect to the Pre-Closing Statement.