Common use of Disputed Final Adjustment Clause in Contracts

Disputed Final Adjustment. (i) No later than five (5) Business Days following the delivery of the calculation of Actual Line-Fill Amount and the Actual In-Process Amount, each of Sunoco and NewCo shall notify the other in writing whether such Party accepts or disputes the accuracy of the calculation of the Actual Line-Fill Amount or the Actual In-Process Amount (or both). If Sunoco and NewCo each accept the calculation of the Actual Line-Fill Amount and/or the Actual In-Process Amount determined pursuant to Section 2.9(b), or if Sunoco and NewCo both fail within such five (5) Business Day period to notify the other of any dispute with respect thereto, then the calculation of Line-Fill Amount and/or the Actual In-Process Amount determined pursuant to Section 2.9(b), shall be the “Final Line-Fill Amount” and/or the “Final In-Process Amount,” respectively, which, shall be deemed final and conclusive and binding upon all Parties in all respects. (ii) If Sunoco or NewCo disputes the accuracy of the calculation of Actual Line-Fill Amount or the Actual In-Process Amount pursuant to Section 2.9(c)(i), such Party shall provide written notice to the other Parties hereto no later than five (5) Business Days following the delivery by the Accessor to NewCo and Sunoco of the calculation of the Actual Line-Fill Amount and/or the Actual In-Process Amount (the “Dispute Notice”), setting forth in reasonable detail those items that such Party disputes. In the event there is a Dispute ** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. Notice, NewCo and Sunoco shall forthwith promptly jointly request that the Accessor make a binding determination as to the disputed items in accordance with this Agreement. (iii) The Accessor will under the terms of its engagement have no more than ten (10) Business Days from the date of referral within which to render its written decision with respect to the disputed items (and only with respect to any unresolved disputed items set forth in the Dispute Notice) and the calculation of Final Line-Fill Amount and the Final In-Process Amount shall be based solely on the resolution of such disputed items by the Accessor. The Accessor shall review such submissions and base its determination solely on such submissions. In resolving any disputed item, the Accessor may not assign a value to any item greater than the greatest value for such item claimed by either Party or less than the least value for such item claimed by either Party. The decision of the Accessor shall be deemed final and binding upon the parties and enforceable by any court of competent jurisdiction and the Accessor’s calculation of Final Line-Fill Amount and the Final In-Process Amount shall be deemed the “Final Line-Fill Amount” and/or “Final In-Process Amount.” The fees and expenses of the Accessor shall be allocated to be paid by NewCo.

Disputed Final Adjustment. (i) No later than five thirty (530) Business Days days following the delivery by Purchaser of the calculation of Actual Line-Fill Amount Working Capital, Actual Cash, Actual Indebtedness and Actual Transaction Expenses, the Actual In-Process Amount, each of Sunoco and NewCo Sellers’ Representative shall notify the other Purchaser in writing whether such Party it accepts or disputes the accuracy of the calculation of Actual Working Capital, Actual Cash, Actual Indebtedness and Actual Transaction Expenses. During such thirty (30) day period, subject to subparts (ii) and (iii) contained in the second sentence in Section 6.13, the Sellers’ Representative and its agents shall be provided with prompt access (time being of the essence) to the financial books and records of the Company Group as well as any relevant work papers (in each case subject to execution of customary work paper access letters if requested) as the Sellers’ Representative may reasonably request to enable it to evaluate the calculations of Actual Line-Fill Amount or the Working Capital, Actual In-Process Amount (or both)Cash, Actual Indebtedness and Actual Transaction Expenses prepared by Purchaser. If Sunoco and NewCo each accept the Sellers’ Representative accepts the calculation of the Actual Line-Fill Amount and/or the Working Capital, Actual In-Process Amount Cash, Actual Indebtedness and Actual Transaction Expenses determined pursuant to Section 2.9(b2.5(b), or if Sunoco and NewCo both fail the Sellers’ Representative fails within such five thirty (530) Business Day day period to notify the other Purchaser of any dispute with respect thereto, then the calculation of Line-Fill Amount and/or the Actual In-Process Amount Working Capital determined pursuant to Section 2.9(b), 2.5(b) shall be the “Final Line-Fill AmountWorking Capital,” and/or the calculation of Actual Cash determined pursuant to Section 2.5(b) shall be the “Final In-Process AmountCash,” respectivelythe calculation of Actual Indebtedness determined pursuant to Section 2.5(b) shall be the “Final Indebtedness,” the calculation of Actual Transaction Expenses determined pursuant to Section 2.5(b) shall be the “Final Transaction Expenses,” which, whichin each case, shall be deemed final and conclusive and binding upon all Parties in all respectsrespects for purposes of this Section 2.5. (ii) If Sunoco or NewCo the Sellers’ Representative disputes the accuracy of the calculation of Actual Line-Fill Amount Working Capital, Actual Cash, Actual Indebtedness or Actual Transaction Expenses, the Actual In-Process Amount pursuant to Section 2.9(c)(i), such Party Sellers’ Representative shall provide written notice to the other Parties hereto Purchaser no later than five thirty (530) Business Days days following the delivery by Purchaser to the Accessor to NewCo and Sunoco Sellers’ Representative of the calculation of the Actual Line-Fill Amount and/or the Working Capital, Actual In-Process Amount Cash, Actual Indebtedness or Actual Transaction Expenses (the “Dispute Notice”), setting forth in reasonable detail those items that the Sellers’ Representative disputes and the Sellers’ Representative’s alternative calculation of each such Party disputesitem. In Only the event there is Sellers’ Representative may deliver the Dispute Notice and the Sellers’ Representative shall only have the right to submit one Dispute Notice. During the thirty (30)-day period following delivery of the Dispute Notice, Purchaser and the Sellers’ Representative shall negotiate in good faith with a view to resolving their disagreements over the disputed items. During such thirty (30) day period and until the final determination of Actual Working Capital, Actual Cash, Actual Indebtedness and/or Actual Transaction Expenses, in accordance with this Section 2.5(c)(ii) or Section 2.5(c)(iii), as the case may be (as so determined, or as determined pursuant to Section 2.5(c)(i) above, “Final Working Capital,” “Final Cash,” “Final Indebtedness,” and “Final Transaction Expenses,”, respectively), the Sellers’ Representative and its agents shall be provided with prompt access (time being of the essence) to the financial books and records of the Company Group as each such Person may reasonably request to enable it to address all matters set forth in any Dispute ** Certain information Notice. If the Parties resolve their differences over the disputed items in this document has been omitted and filed separately accordance with the Securities foregoing procedure, Final Working Capital, Final Cash, Final Indebtedness and/or Final Transaction Expenses shall be the amounts agreed upon by them. If the Parties fail to resolve their differences over any of the disputed items within such thirty (30) day period, then Purchaser and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. Notice, NewCo and Sunoco Sellers’ Representative shall forthwith promptly jointly request that a nationally recognized independent public accounting firm as shall be mutually agreed by ▇▇▇▇▇▇▇▇▇ and the Accessor Sellers’ Representative (the “Independent Accountant”) make a binding determination as to the remaining disputed items in accordance with this Agreement. (iii) The Accessor will under the terms of its engagement have no more than ten (10) Business Days from the date of referral within which to render its written decision with respect to the disputed items (and only with respect to any unresolved disputed items set forth in the Dispute Notice) and the calculation of Final Line-Fill Amount and the Final In-Process Amount shall be based solely on the resolution of such disputed items by the Accessor. The Accessor shall review such submissions and base its determination solely on such submissions. In resolving any disputed item, the Accessor may not assign a value to any item greater than the greatest value for such item claimed by either Party or less than the least value for such item claimed by either Party. The decision of the Accessor shall be deemed final and binding upon the parties and enforceable by any court of competent jurisdiction and the Accessor’s calculation of Final Line-Fill Amount and the Final In-Process Amount shall be deemed the “Final Line-Fill Amount” and/or “Final In-Process Amount.” The fees and expenses of the Accessor shall be allocated to be paid by NewCo.

Disputed Final Adjustment. (i) No later than forty-five (545) Business Days days following the delivery by the Purchaser of the calculation of Actual Line-Fill Amount Working Capital, Actual Cash, Actual Indebtedness and Actual Transaction Expenses, the Actual In-Process Amount, each of Sunoco and NewCo Seller Representative shall notify the other Purchaser in writing whether such Party he accepts or disputes the accuracy of the calculation of Actual Working Capital, Actual Cash, Actual Indebtedness and Actual Transaction Expenses. During such forty-five (45) day period, the Actual Line-Fill Amount Seller Representative and his agents shall be provided with reasonable access during regular business hours, without undue interruption to the Company or the Business and upon advance written request (subject to Seller Representative and such agents entering into any access letters required by accountants), to the financial books and records of the Purchaser and the Company as well as any relevant work papers and such employees, agents, representatives and advisors of the Company involved in such calculations as the Seller Representative may reasonably request to the extent that, such work papers, books and records and employees, agents, representatives and advisors are necessary for the Seller Representative and his agents to confirm the calculations of Actual In-Process Amount (or both)Working Capital, Actual Cash, Actual Indebtedness and Actual Transaction Expenses prepared by the Purchaser. If Sunoco and NewCo each accept the Seller Representative accepts the calculation of the Actual Line-Fill Amount and/or the Working Capital, Actual In-Process Amount Cash, Actual Indebtedness and Actual Transaction Expenses determined pursuant to Section 2.9(b‎2.4(b), or if Sunoco and NewCo both fail the Seller Representative does not, within such forty-five (545) Business Day period day period, deliver to notify the other Purchaser a written notice of any dispute with respect theretothereto (a “Dispute Notice”), then the calculation of Line-Fill Amount and/or the Actual In-Process Amount Working Capital determined pursuant to Section 2.9(b), ‎2.4(b) shall be the “Final Line-Fill AmountWorking Capital” and/or the calculation of Actual Cash determined pursuant to Section ‎2.4(b) shall be the “Final In-Process AmountCash,” respectively, which, the calculation of Actual Indebtedness determined pursuant to Section ‎2.4(b) shall be the “Final Indebtedness,” the calculation of Transaction Expenses determined pursuant to Section ‎2.4(b) shall be the “Final Transaction Expenses” and such items shall in each case be deemed final and conclusive and binding upon all Parties parties in all respects. (ii) If Sunoco or NewCo the Seller Representative disputes the accuracy of the calculation of Actual Line-Fill Amount Working Capital, Actual Cash, Actual Indebtedness or Actual Transaction Expenses, the Actual In-Process Amount pursuant to Section 2.9(c)(i), such Party Seller Representative shall provide written notice deliver to the other Parties hereto Purchaser a Dispute Notice no later than forty-five (545) Business Days days following the delivery by the Accessor Purchaser to NewCo and Sunoco the Seller Representative of the calculation of the Actual Line-Fill Amount and/or the Working Capital, Actual In-Process Amount (the “Dispute Notice”)Cash, Actual Indebtedness and Actual Transaction Expenses, setting forth in reasonable detail (together with reasonable supporting documentation and information) those items that such Party the Seller Representative disputes. In During the event there is thirty (30) day period following delivery of a Dispute ** Certain information Notice, the Purchaser and the Seller Representative shall negotiate in good faith and use commercially reasonable efforts to resolve their disagreements over any such disputed items set forth in such Dispute Notice. During such thirty (30) day period and until the final determination of Actual Working Capital, Actual Cash, Actual Indebtedness or Actual Transaction Expenses in accordance with this document has been omitted Section ‎2.4(c)(ii) or Section ‎2.4(c)(iii), as the case may be (as so determined, or as determined pursuant to Section ‎2.4(c)(i) above, “Final Working Capital,” “Final Cash,” “Final Indebtedness” and filed separately “Final Transaction Expenses,” respectively), the Purchaser and the Purchaser Representatives, on the one hand, and Seller Representative and his agents, on the other hand, shall reasonably cooperate with each other and shall be provided copies of the relevant portion of their respective books and records and work papers used, in the case of the Purchaser and the Purchaser Representatives, in the calculation of Actual Working Capital, Actual Cash, Actual Indebtedness, Actual Transaction Expense and, in the case of Seller Representative and his agents, in preparing such Dispute Notice, in each case, during regular business hours, without undue interruption to their respective businesses or the Business, as applicable, and upon advance written request (subject to entering into any access letters required by their respective accountants) for the purpose of resolving, and only to the extent required for the resolution of, such disputed items. If the parties resolve their differences over such disputed items in accordance with the Securities foregoing procedure, Final Working Capital, Final Cash, Final Indebtedness or Final Transaction Expenses shall be the amounts agreed upon by them. If the parties fail to resolve their differences over such disputed items within such thirty (30) day period, then the Purchaser and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. Notice, NewCo and Sunoco Seller Representative shall forthwith promptly jointly request that ▇▇▇▇▇, LLC (formerly known as Duff & ▇▇▇▇▇▇, LLC), and if ▇▇▇▇▇, LLC is unable to serve, the Accessor Purchaser and the Seller Representative shall appoint by mutual agreement the office of an impartial nationally recognized independent public accounting firm that is reasonably acceptable to the Purchaser and the Seller Representative (the “Accounting Arbitrator”) to make a binding determination as to the such disputed items in accordance with this AgreementAgreement (including the applicable definitions and the Accounting Principles, where applicable). (iii) The Accessor Accounting Arbitrator will under the terms of its engagement have no more than thirty (30) days from the date of referral and no more than ten (10) Business Days from the date final submission of referral information and testimony by the Purchaser and the Seller Representative within which to render its written decision with respect to the disputed items (and only with respect to any unresolved disputed items set forth in the a Dispute Notice) and the final calculation of Final Line-Fill Amount and the Final In-Process Amount Actual Working Capital, Actual Cash, Actual Indebtedness or Actual Transaction Expenses shall be based solely on the resolution of such disputed items by the Accessoritems. The Accessor Accounting Arbitrator shall review such submissions of information and testimony by the Purchaser and the Seller Representative as the Accounting Arbitrator reasonably requires in order to reach a decision with respect to such disputed items referred to it, including such reasonable independent review as the Accounting Arbitrator may require (including written submissions by the Purchaser or the Seller Representative to the Accounting Arbitrator) and base its determination solely on such submissionsthereon. No party will have ex parte meetings, teleconferences or other communication with the Accounting Arbitrator, as it is intended for each Party to be included in all discussions and communication with the Accounting Arbitrator. The Accounting Arbitrator shall act as an accounting expert and not an arbitrator. In resolving any such disputed item, the Accessor Accounting Arbitrator may not assign a value to any item greater than the greatest maximum value for such item claimed by either Party party or less than the least minimum value for such item claimed by either Partyparty. The Absent fraud or manifest error, the decision of the Accessor Accounting Arbitrator shall be deemed final and binding upon the parties and enforceable by the parties in any court of competent jurisdiction and the AccessorAccounting Arbitrator’s final calculation of Final Line-Fill Amount and the Final In-Process Amount Actual Working Capital shall be deemed the “Final Line-Fill AmountWorking Capital,” and/or the Accounting Arbitrator’s final calculation of Actual Cash shall be deemed the “Final In-Process AmountCash,” the Accounting Arbitrator’s final calculation of Actual Indebtedness shall be deemed the “Final Indebtedness,” or the Accounting Arbitrator’s final calculation of Actual Transaction Expenses shall be deemed the “Final Transaction Expenses.” The fees fees, costs and expenses of the Accessor Accounting Arbitrator shall be borne by the Purchaser, on the one hand, and the Sellers, on the other hand, based on the percentage which the portion of the disputed amount was not awarded to each party bears to the amount actually contested by such party. For example, if the Purchaser claims Actual Working Capital is $1,000 less than the Estimated Working Capital, and the Seller Representative disputes only $500 of the amount claimed by the Purchaser, and if the Accounting Arbitrator ultimately resolves the dispute by awarding the Purchaser with $300 of the $500 contested, then the fees, costs and expenses of the Accounting Arbitrator will be allocated 60% (i.e., $300/$500) to be the Sellers and 40% (i.e., $200/$500) to the Purchaser. In connection with the Accounting Arbitrator’s determination of any unresolved disputed items, the Accounting Arbitrator shall also determine the allocation of its fees, costs and expenses between the parties in accordance with the preceding two sentences, taking into account all fees, costs and expenses of the Accounting Arbitrator already paid by NewCoeach of the Purchaser and the Seller Representative, as of the date of such determination, and such determination of such allocation shall be conclusive and binding on the parties and enforceable by the parties in any court of competent jurisdiction. The parties agree that prior to the time at which the calculations of Final Working Capital, Final Cash, Final Indebtedness and Final Transaction Expenses become final under this Section ‎2.4, any statement, calculation or notice delivered by any party pursuant to this Section ‎2.4 is being delivered by such party for settlement purposes only and will be treated as evidence of an offer to compromise pursuant to Rule 408 of the Federal Rules of Evidence.

Disputed Final Adjustment. (i) No later than five (5) Business Days following the delivery of the calculation of Actual Line-Fill Amount and the Actual In-Process Amount, each of Sunoco and NewCo shall notify the other in writing whether such Party accepts or disputes the accuracy of the calculation of the Actual Line-Fill Amount or the Actual In-Process Amount (or both). If Sunoco and NewCo each accept the calculation of the Actual Line-Fill Amount and/or the Actual In-Process Amount determined pursuant to Section 2.9(b), or if Sunoco and NewCo both fail within such five (5) Business Day period to notify the other of any dispute with respect thereto, then the calculation of Line-Fill Amount and/or the Actual In-Process Amount determined pursuant to Section 2.9(b), shall be the “Final Line-Fill Amount” and/or the “Final In-Process Amount,” respectively, which, shall be deemed final and conclusive and binding upon all Parties in all respects. (ii) If Sunoco or NewCo disputes the accuracy of the calculation of Actual Line-Fill Amount or the Actual In-Process Amount pursuant to Section 2.9(c)(i), such Party shall provide written notice to the other Parties hereto no later than five (5) Business Days following the delivery by the Accessor to NewCo and Sunoco of the calculation of the Actual Line-Fill Amount and/or the Actual In-Process Amount (the “Dispute Notice”), setting forth in reasonable detail those items that such Party disputes. In the event there is a Dispute ** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. Notice, NewCo and Sunoco shall forthwith promptly jointly request that the Accessor make a binding determination as to the disputed items in accordance with this Agreement. (iii) The Accessor will under the terms of its engagement have no more than ten (10) Business Days from the date of referral within which to render its written decision with respect to the disputed items (and only with respect to any unresolved disputed items set forth in the Dispute Notice) and the calculation of Final Line-Fill Amount and the Final In-Process Amount shall be based solely on the resolution of such disputed items by the Accessor. The Accessor shall review such submissions and base its determination solely on such submissions. In resolving any disputed item, the Accessor may not assign a value to any item greater than the greatest value for such item claimed by either Party or less than the least value for such item claimed by either Party. The decision of the Accessor shall be deemed final and binding upon the parties and enforceable by any court of competent jurisdiction and the Accessor’s calculation of Final Line-Fill Amount and the Final In-Process Amount shall be deemed the “Final Line-Fill Amount” and/or “Final In-Process Amount.” The fees and expenses of the Accessor shall be allocated to be paid by NewCo.