Common use of Pre-Closing Estimates Clause in Contracts

Pre-Closing Estimates. (a) At least five (5) Business Days prior to the scheduled Closing Date, Ardagh shall deliver to NewCo and Element a statement (the “Ardagh Estimated Closing Statement”) that sets forth a good faith estimate of (i) the amount of the Closing Indebtedness of the Ardagh Purchased Entities (the “Estimated Ardagh Closing Indebtedness”), (ii) the Closing Cash of the Ardagh Purchased Entities (the “Estimated Ardagh Closing Cash”), (iii) the Closing Working Capital Amount of the Ardagh Purchased Entities (the “Estimated Ardagh Closing Working Capital Amount”) and either the resulting Estimated Closing Working Capital Excess or Estimated Closing Working Capital Shortfall, as the case may be, in each case, together with reasonable supporting documentation, and (iv) the resulting Ardagh Initial Adjustment. The Ardagh Estimated Closing Statement shall be in the format set forth in the Ardagh Sample Closing Statement and prepared and calculated in accordance with the applicable Closing Statement Methodologies. Until two (2) Business Days prior to the Closing Date, Element may propose, and Ardagh shall consider in good faith but shall have no obligation to agree, revisions to the Ardagh Estimated Closing Statement. Unless Ardagh agrees to any such changes (in which case, the Ardagh Estimated Closing Statement shall be updated to reflect such changes), the Ardagh Estimated Closing Statement delivered by Ardagh shall be used for purposes of calculating the Ardagh Initial Adjustment. (b) At least five (5) Business Days prior to the scheduled Closing Date, Element shall deliver to NewCo and Ardagh a statement (the “Element Estimated Closing Statement”) that sets forth a good faith estimate of (i) the amount of the Closing Indebtedness of the Exal Purchased Entities (the “Estimated Exal Closing Indebtedness”), (ii) the Closing Cash of the Exal Purchased Entities (the “Estimated Exal Closing Cash”), (iii) the Closing Working Capital Amount of the Exal Purchased Entities (the “Estimated Exal Closing Working Capital Amount”) and either the resulting Estimated Closing Working Capital Excess or Estimated Closing Working Capital Shortfall, as the case may be, in each case, together with reasonable supporting documentation, and (iv) the resulting Element Initial Adjustment. The Element Estimated Closing Statement shall be in the format set forth in the Element Sample Closing Statement and prepared and calculated in accordance with the applicable Closing Statement Methodologies. Until two (2) Business Days prior to the Closing Date, Ardagh may propose, and Element shall consider in good faith but shall have no obligation to agree, revisions to the Element Estimated Closing Statement. Unless Element agrees to any such changes (in which case, the Element Estimated Closing Statement shall be updated to reflect such changes), the Element Estimated Closing Statement delivered by Element shall be used for purposes of calculating the Element Initial Adjustment.

Pre-Closing Estimates. (a) At least five (5) Business Days prior to the scheduled Closing Date, Ardagh Seller shall prepare, or cause to be prepared, and deliver to NewCo and Element Purchaser (i) a statement written schedule (the “Ardagh Estimated Preliminary Closing StatementSchedule”) that sets setting forth a in reasonable detail Seller’s good faith estimate of (i) the amount calculation of the Closing Indebtedness Cash Payment and good faith estimates of the Ardagh Purchased Entities following components thereof: (A) Net Working Capital (the “Estimated Ardagh Net Working Capital”), (B) Closing Indebtedness (the “Estimated Closing Indebtedness”), and (iiC) the Closing Cash of the Ardagh Purchased Entities Transaction Expenses (the “Estimated Ardagh Closing CashTransaction Expenses”), and (iiiii) a written statement (the “Preliminary Expense Statement”) setting forth in reasonable detail Seller’s good faith estimate of the aggregate amount of Reimbursable Expenses as of the Closing Working Capital Amount of the Ardagh Purchased Entities (the “Estimated Ardagh Closing Working Capital AmountReimbursable Expenses”) and either the resulting Estimated Closing Working Capital Excess or Estimated Closing Working Capital Shortfall, as the case may be, in each case), together with reasonable supporting documentation, and (iv) copies of documents reasonably necessary to support Seller’s calculation of the resulting Ardagh Initial AdjustmentEstimated Reimbursable Expenses. The Ardagh Estimated Preliminary Closing Statement Schedule shall be in the format set forth in the Ardagh Sample Closing Statement and prepared and calculated in accordance with the applicable Accounting Principles. During the period beginning on the date of delivery of the Preliminary Closing Schedule and the Preliminary Expense Statement Methodologiesand continuing until the Closing, Seller shall provide Purchaser and its Representatives with access to the Records of Seller and to any other documents or information relating to the preparation of the Preliminary Closing Schedule and the Preliminary Expense Statement or the calculation of the amounts reflected thereon reasonably requested by Purchaser or its Representatives, and to Seller’s employees responsible for and knowledgeable about the information used therein, and the preparation or calculation thereof. Until Without limiting any of Purchaser’s other rights or remedies, Purchaser may object that any of the amounts contained in the Preliminary Closing Schedule and/or the Preliminary Expense Statement have not been calculated in good faith or in a manner consistent with the terms of this Agreement by delivering to Seller a written notice of its disagreement at least two (2) Business Days prior to the anticipated Closing Date (the “Purchaser’s Notice of Disagreement”), specifying in reasonable detail the nature of its objections to Seller’s estimates. Seller and Purchaser in good faith shall seek to resolve in writing any objections set forth in Purchaser’s Notice of Disagreement prior to the Closing, and Seller shall make such revisions to the disputed items as may be mutually agreed between Seller and Purchaser; provided, that if and to the extent that Purchaser and Seller have not resolved all such differences by the close of business on the Business Day prior to the anticipated Closing Date, Element may propose, then the Closing will proceed and Ardagh Seller and Purchaser shall consider in good faith but shall have no obligation to agree, revisions use the applicable amount or calculation proposed by Seller with respect to the Ardagh Estimated Preliminary Closing Schedule and/or the Preliminary Expense Statement. Unless Ardagh agrees to any such changes (in which case, the Ardagh Estimated Closing Statement shall be updated to reflect such changes)as applicable, the Ardagh Estimated Closing Statement delivered by Ardagh shall be used for purposes of calculating the Ardagh Initial Adjustment. (b) At least five (5) Business Days prior Closing Cash Payment. For the avoidance of doubt, any failure of Purchaser to raise any objection or dispute with respect to the scheduled Preliminary Closing Date, Element shall deliver to NewCo Schedule and Ardagh a statement (the “Element Estimated Closing Statement”) that sets forth a good faith estimate of (i) the amount of the Closing Indebtedness of the Exal Purchased Entities (the “Estimated Exal Closing Indebtedness”), (ii) the Closing Cash of the Exal Purchased Entities (the “Estimated Exal Closing Cash”), (iii) the Closing Working Capital Amount of the Exal Purchased Entities (the “Estimated Exal Closing Working Capital Amount”) and either the resulting Estimated Closing Working Capital Excess or Estimated Closing Working Capital Shortfall, as the case may be, in each case, together with reasonable supporting documentation, and (iv) the resulting Element Initial Adjustment. The Element Estimated Closing Preliminary Expense Statement shall be not in any way prejudice Purchaser’s right to raise any matter in the format set forth in the Element Sample Final Closing Statement and prepared and calculated in accordance with the applicable Closing Statement Methodologies. Until two (2) Business Days prior to the Closing Date, Ardagh may propose, and Element shall consider in good faith but shall have no obligation to agree, revisions to the Element Estimated Closing Statement. Unless Element agrees to any such changes (in which case, the Element Estimated Closing Statement shall be updated to reflect such changes), the Element Estimated Closing Statement delivered by Element shall be used for purposes of calculating the Element Initial AdjustmentSchedule.

Pre-Closing Estimates. Not more than ten (a10) At Business Days and at least five six (56) Business Days prior to the scheduled Closing Date, Ardagh Sellers’ Representatives shall prepare, or cause to be prepared, and deliver to NewCo and Element Buyer a statement (the “Ardagh Estimated Closing Statement”) that sets setting forth a good faith estimate of each of (i) the amount of the Closing Indebtedness of the Ardagh Purchased Entities Net Working Capital (the “Estimated Ardagh Closing IndebtednessNet Working Capital”), (ii) the Company Cash as of 11:59 p.m. on the day immediately preceding the Closing Cash of the Ardagh Purchased Entities Date (the “Estimated Ardagh Closing Cash”), (iii) the Closing Working Capital Amount of the Ardagh Purchased Entities Company Indebtedness (the “Estimated Ardagh Closing Working Capital AmountCompany Indebtedness”) and either (iv) the resulting Company Transaction Expenses (the “Estimated Closing Working Capital Excess or Estimated Closing Working Capital Shortfall, as the case may be, in each caseCompany Transaction Expenses”), together with reasonable supporting documentation, and (iv) documentation showing the resulting Ardagh Initial Adjustmentmanner of calculation for each of the amounts set forth therein. The Ardagh Estimated Closing Statement shall be in follow the format of the form of closing statement set forth in Annex D-1 (the Ardagh Sample “Form of Closing Statement Statement”), and prepared the Sellers’ Representatives shall determine any item constituting the Estimated Closing Net Working Capital, Estimated Closing Cash, Estimated Closing Company Indebtedness and calculated Estimated Closing Company Transaction Expenses therein in accordance with the Applicable Accounting Standards and the applicable Closing Statement Methodologiesdefined terms set forth herein. Until two (2) Business Days prior Buyer shall be entitled to comment on and request reasonable changes to the Closing Date, Element may propose, Statement and Ardagh Sellers’ Representatives shall consider in good faith but shall have no obligation to agree, revisions any changes Buyer proposes to the Ardagh Closing Statement; provided that, in case of any disagreement, the Estimated Closing Statement. Unless Ardagh agrees to any such changes (in which caseNet Working Capital, the Ardagh Estimated Closing Statement shall be updated to reflect such changes)Cash, the Ardagh Estimated Closing Statement delivered by Ardagh shall be used for purposes of calculating Company Indebtedness and the Ardagh Initial Adjustment. (b) At least five (5) Business Days prior to the scheduled Closing Date, Element shall deliver to NewCo and Ardagh a statement (the “Element Estimated Closing Statement”) that sets forth a good faith estimate of (i) the amount of the Closing Indebtedness of the Exal Purchased Entities (the “Estimated Exal Closing Indebtedness”), (ii) the Closing Cash of the Exal Purchased Entities (the “Estimated Exal Closing Cash”), (iii) the Closing Working Capital Amount of the Exal Purchased Entities (the “Estimated Exal Closing Working Capital Amount”) and either the resulting Estimated Closing Working Capital Excess or Estimated Closing Working Capital Shortfall, Company Transaction Expenses as the case may be, in each case, together with reasonable supporting documentation, and (iv) the resulting Element Initial Adjustment. The Element Estimated Closing Statement shall be in the format set forth in the Element Sample Closing Statement and prepared and calculated in accordance with provided by the applicable Closing Statement Methodologies. Until two (2) Business Days prior to the Closing Date, Ardagh may propose, and Element shall consider in good faith but shall have no obligation to agree, revisions to the Element Estimated Closing Statement. Unless Element agrees to any such changes (in which case, the Element Estimated Closing Statement shall be updated to reflect such changes), the Element Estimated Closing Statement delivered by Element Sellers’ Representatives shall be used in determining the Closing Adjusted Cash Component for purposes of calculating this Purchase Agreement in the Element Initial Adjustmentmanner set forth in Section 3.1(b) below and shall not constitute grounds for delay of the Closing or abandonment of the Transaction by Buyer for any reason other than manifest error. The Closing Consideration Schedule will be delivered concurrently with the Closing Statement.

Pre-Closing Estimates. (a) At least five four (5) Business Days prior to the scheduled Closing Date, Ardagh shall deliver to NewCo and Element a statement (the “Ardagh Estimated Closing Statement”) that sets forth a good faith estimate of (i) the amount of the Closing Indebtedness of the Ardagh Purchased Entities (the “Estimated Ardagh Closing Indebtedness”), (ii) the Closing Cash of the Ardagh Purchased Entities (the “Estimated Ardagh Closing Cash”), (iii) the Closing Working Capital Amount of the Ardagh Purchased Entities (the “Estimated Ardagh Closing Working Capital Amount”) and either the resulting Estimated Closing Working Capital Excess or Estimated Closing Working Capital Shortfall, as the case may be, in each case, together with reasonable supporting documentation, and (iv) the resulting Ardagh Initial Adjustment. The Ardagh Estimated Closing Statement shall be in the format set forth in the Ardagh Sample Closing Statement and prepared and calculated in accordance with the applicable Closing Statement Methodologies. Until two (24) Business Days prior to the Closing Date, Element may propose, and Ardagh Sellers shall consider in good faith but shall have no obligation cause the Companies to agree, revisions to the Ardagh Estimated Closing Statement. Unless Ardagh agrees to any such changes (in which case, the Ardagh Estimated Closing Statement shall be updated to reflect such changes), the Ardagh Estimated Closing Statement delivered by Ardagh shall be used for purposes of calculating the Ardagh Initial Adjustment. (b) At least five (5) Business Days prior to the scheduled Closing Date, Element shall deliver to NewCo and Ardagh Buyers a statement (the “Element Estimated Closing Statement”) that sets setting forth a the Sellers’ good faith estimate of (i1) the amount Net Working Capital as of the Closing Indebtedness of the Exal Purchased Entities Measuring Time (the “Estimated Exal Working Capital”), (2) Closing Indebtedness (the “Estimated Closing Indebtedness”), (ii3) the Closing Cash of the Exal Purchased Entities Transaction Expenses (the “Estimated Exal Closing CashTransaction Expenses”), (iii4) the Closing Working Capital Amount of the Exal Purchased Entities Purchase Price resulting therefrom (the “Estimated Exal Closing Working Capital AmountPurchase Price”) and (5) the amount of such Purchase Price allocated to each holder of Equity Interests in either Company. The Parties agree that for the resulting purpose of preparing (A) the Estimated Closing Working Capital Excess or Estimated Closing Working Capital ShortfallCapital, as such estimate shall be calculated in accordance with and on a basis consistent with the case may be, in each case, together with reasonable supporting documentationAccounting Principles, and (ivB) the resulting Element Initial AdjustmentEstimated Closing Indebtedness and the Estimated Transaction Expenses, such estimates shall be calculated in accordance with and on a basis consistent with GAAP. The Element Estimated Closing Statement shall be prepared in US Dollars. Any assets and liabilities contained in any items included in the format set forth in the Element Sample Estimated Closing Statement and prepared and calculated that are denominated in accordance with any foreign currency shall be converted into US Dollars at the mid-point US Dollar spot rate of exchange applicable to such other foreign currency as quoted by the Wall Street Journal as of the close of business on the Business Day prior to the Closing Statement MethodologiesDate. Until two (2) Buyers may submit any objections in writing to the Sellers’ Representative until 12:00 p.m. Eastern time on the Business Days Day prior to the Closing Date, Ardagh may propose, and Element shall consider in good faith but shall have no obligation Sellers will cooperate reasonably with Buyers to agree, revisions to revise the Element Estimated Closing Statement. Unless Element agrees to any such changes (in which case, the Element Estimated Closing Statement shall be updated to reflect such changes)the mutual agreement of Sellers and Buyers, but if they do not prior to the anticipated Closing Date agree, then Sellers’ calculations of Estimated Working Capital, the Element Estimated Closing Statement delivered by Element Indebtedness and the Estimated Transaction Expenses shall be used for purposes apply, provided that no objection asserted (or not asserted) pursuant to this Section 2.3 shall prejudice the rights of calculating the Element Initial AdjustmentParties pursuant to Section 2.4.