Common use of Pre-Closing Statement Clause in Contracts

Pre-Closing Statement. At least five (5) Business Days prior to the Closing Date, the Company shall deliver to Buyer a statement (the “Pre-Closing Statement”) setting forth the Company’s good faith estimate of (A) the amount of Closing Cash (the “Estimated Cash”), (B) the Closing Working Capital (the “Estimated Closing Working Capital”), (C) the Closing Date Indebtedness (the “Estimated Closing Date Indebtedness”), (D) the Closing Transaction Expenses (the “Estimated Closing Transaction Expenses”), and (E) based on the foregoing, the calculation of the Adjustment Amount (the “Estimated Adjustment Amount”), together with calculations demonstrating each component thereof, as well as the amount of each Closing Payment. The Pre-Closing Statement shall be prepared in a manner consistent with this Agreement, including the definitions of the terms Closing Working Capital, Closing Cash, Closing Date Indebtedness, Closing Transaction Expenses, and the Accounting Rules. Seller shall provide Company reasonable documentation and access to relevant personnel as needed to support calculation of the components of the Pre-Closing Statement prior to the Closing Date. Buyer shall be entitled to review the Pre-Closing Statement and the materials and information used by the Company in preparing the Pre-Closing Statement, and the Company shall consider in good faith any comments of Buyer with respect to the Pre-Closing Statement prior to the Closing Date. The amounts set forth in the Pre-Closing Statement shall be binding on the Parties for purposes of the Closing Payments and in the event of any disagreement between the Company and Buyer as to the Pre-Closing Statement, the Company’s version of the Pre-Closing Statement shall be used.

Pre-Closing Statement. At least No later than five (5) Business Days prior to the Closing Date, the Company shall prepare and deliver to Buyer Parent a statement (the “Pre-Closing Statement”) setting forth the Company’s good faith estimate of (A) the amount Merger Consideration as of Closing Cash the Adjustment Time (the “Estimated CashMerger Consideration”), (B) together with an unaudited consolidated balance sheet of the Closing Working Capital Group Companies as of the Adjustment Time (the “Estimated Closing Working CapitalBalance Sheet”), expected month-end closing revenue and closing cost of sales (C) or if Closing is not to occur at the Closing Date Indebtedness (the “Estimated Closing Date Indebtedness”)end of a month, (D) the Closing Transaction Expenses (the “Estimated Closing Transaction Expenses”a good faith estimate of such amounts), and (E) based on the foregoing, the calculation of the Adjustment Amount (the “Estimated Adjustment Amount”), together with reasonably detailed calculations demonstrating each component thereofthereof (including the Consideration Waterfall), as well as the amount of each Closing Payment. The Pre-Closing Statement shall be prepared in a manner consistent with this Agreement, including the definitions of the terms Closing Working Capital, Closing Cash, Closing Date Indebtedness, Closing Transaction Expenses, Expenses and the Accounting RulesRules and practices referred to therein (including as reflected on Exhibit B). Seller shall provide Company reasonable documentation and access to relevant personnel as needed to support calculation of the components of the Pre-Closing Statement prior to the Closing Date. Buyer Parent shall be entitled to review promptly the Pre-Closing Statement and the materials and information used by the Company in preparing the Pre-Closing Statement and Parent shall have the opportunity to propose changes to the Pre-Closing Statement. The Company (i) shall permit Parent and its Agents reasonable access to the financial records of the Group Companies that are relevant to the preparation of the Pre-Closing Statement and (B) agrees to consider any proposed changes in good faith. If, prior to the Closing, Parent reasonably and in good faith objects to any of the estimates provided by the Company in the Pre-Closing Statement, and the Company objects to such proposed changes, the Company shall consider respond in writing to Parent’s proposed changes in reasonable detail and with reasonably detailed calculations. Parent and the Company shall use reasonable best efforts to promptly and in good faith any comments of Buyer resolve their differences with respect to the Pre-Closing Statement prior to the Closing Date. The amounts set forth in the Pre-Closing Statement shall be binding on the Parties for purposes of the Closing Payments any such objections, and in the event of any disagreement between the Company and Buyer as to shall revise the Pre-Closing Statement, the Company’s version Estimated Merger Consideration, and any applicable amounts set forth therein to reflect any such resolutions, and the Pre-Closing Statement (and components thereof) shall be deemed to incorporate all such revisions for all purposes hereunder. If following compliance with this Section 1.10(a), Parent and the Company fail to resolve an objection to the estimate within the five (5) Business Day period prior to Closing then for purposes of this Agreement, including the revised Pre-Closing Statement, such estimate for the unresolved item shall be deemed to be the estimate of the Company provided in the originally-delivered Pre-Closing Statement. Acceptance of the Pre-Closing Statement shall not waive Parent’s rights under this Agreement including this Section 1.10. The Consideration Waterfall shall set forth the amount of the Estimated Merger Consideration to be usedpaid to each Equityholder as Closing Payments pursuant to Section 1.9(a) and Section 1.9(b). Parent may fully rely on the Pre-Closing Statement in making such Closing Payments to the Paying Agent on behalf of the Member and the CHP Members and Centauri, LLC on behalf of the Optionholders. Such Closing Payments made in accordance with the Pre-Closing Statement shall fully satisfy Parent’s obligations under Section 1.9(a) and Section 1.9(b), and no Equityholder shall have any claim or right to any other payment whatsoever from Parent or the Surviving Company in respect of its Securities, other than payments, if any, contemplated by Section 1.10(e), and the release, if any, of the Adjustment Escrow Amount or the Representative Expense Fund Amount.

Pre-Closing Statement. At least five Not later than two (52) Business Days prior to the Closing Date, the Company shall deliver to Buyer Purchaser (i) a statement (the “Pre-Closing Statement”) setting forth (A) the Company’s good faith estimate of (A) Working Capital as of the amount of Closing Cash Adjustment Time (the “Estimated CashWorking Capital”), (B) the Closing amount, if any, by which such calculation of Estimated Working Capital (exceeds the “Working Capital Target or the amount, if any, by which the Working Capital Target exceeds such calculation of Estimated Closing Working Capital”), (C) the Closing Date Indebtedness Company’s good faith estimate of the Company Transaction Expenses (the “Estimated Closing Date IndebtednessTransaction Expenses”), (D) the Closing Transaction Expenses Company’s good faith estimate of the Net Debt (the “Estimated Closing Transaction ExpensesNet Debt”), and (E) based on the foregoingamount, if any, by which such calculation of Estimated Net Debt exceeds the Net Debt Target or the amount, if any, by which the Net Debt Target exceeds such calculation of Estimated Net Debt, (F) the name of all holders of Company Stock, together with the number of shares of Company Stock owned by such holder as of immediately prior to the Effective Time, an indication whether such holder of Company Stock has duly executed and delivered a Letter of Transmittal, and such holder’s Participation Percentage, (G) the name of all holders of Company Warrants, together with the number of shares of Company Stock issuable upon the exercise of the Company Warrants owned by such holder and the exercise price therefor as of immediately prior to the Effective Time, an indication whether such holder has duly executed and delivered a Warrant Cancellation Agreement, Closing Warrant Merger Consideration payable to such holder and such holder’s Participation Percentage, (H) the number of Fully Diluted Shares, (I) the resulting calculation of the Adjustment Amount Estimated Merger Consideration and Closing Merger Consideration, (J) the “Estimated Adjustment Amount”)resulting calculation of the Closing Company Stock Per Share Merger Consideration, together with calculations demonstrating each component thereof(K) the resulting calculation of the Closing Payments, as well as and (L) wire transfer instructions for any Closing Payment to be paid to the amount Representative, (ii) a certificate signed by an authorized executive officer of each Closing Payment. The the Company that the Pre-Closing Statement shall be and the determinations and calculations contained therein were prepared in a manner consistent accordance with this Agreement, including the definitions of the terms Closing Working Capital, Closing Cash, Closing Date Indebtedness, Closing Transaction Expenses, and the Accounting Rules, and (iii) the Pay-Off Letters. Seller The Company shall provide Company Purchaser with reasonable documentation and access to relevant personnel as needed to support calculation the books and records of the components of Company, and other Company documents, to verify the information set forth in the Pre-Closing Statement prior to the Closing Date. Buyer ; provided, however, that Purchaser and Merger Sub shall be entitled to review rely on the Pre-Closing Statement and Purchaser and Merger Sub shall not be responsible for the materials calculations or the determinations regarding such calculations in such Pre-Closing Statement. The Representative and information used by the Company shall give due and reasonable consideration in preparing good faith to any comments made by Purchaser (and shall correct the Pre-Closing Statement, as applicable, for any inaccuracies shown by Purchaser) and the Company shall consider otherwise cooperate in good faith to answer any comments questions and resolve any issues raised by Purchaser and its representatives in connection with their review of Buyer with respect to the Pre-Closing Statement prior to the Closing Date. The amounts set forth in the Pre-Closing Statement shall be binding on the Parties for purposes of the Closing Payments and in the event of any disagreement between the Company and Buyer as to the Pre-Closing Statement, the Company’s version of the Pre-Closing Statement shall be used.

Pre-Closing Statement. At least five (5) No later than three Business Days prior to before the Closing Date, the Company shall will prepare and deliver to Buyer a Parent and the Purchaser an unaudited statement (the “Pre-Closing Statement”) ), which will be prepared in accordance with GAAP as applied in the preparation of the Company Financial Statements (the “Accounting Principles”), setting forth the Company’s good faith estimate estimates of each of (Ai) the Estimated Aggregate Consideration; (ii) the aggregate amount of Closing all Cash (of the “Estimated Cash”), (B) Company as of 11:59 p.m. on the day immediately preceding the Closing Working Capital Date (the “Estimated Closing Working CapitalCash”), ; (Ciii) the aggregate amount of all Indebtedness of the Company as of 11:59 p.m. on the day immediately preceding the Closing Date Indebtedness (the “Estimated Closing Date Indebtedness”), ; (Div) the Closing estimated Company Transaction Expenses of the Company as of 11:59 p.m. (Pacific Time) on the day immediately preceding the Closing Date (the “Estimated Closing Transaction Expenses”), ; and (Ev) based the aggregate amount of Trade Payables as of 11:59 p.m. (Pacific Time) on the foregoing, day immediately preceding the calculation of the Adjustment Amount Closing Date (the “Estimated Adjustment AmountClosing Trade Payables”). In addition, together with calculations demonstrating each component thereofat least three Business Days before the Closing Date, as well as the amount of each Closing Payment. The Pre-Closing Statement shall be prepared in a manner consistent with this Agreement, including the definitions of the terms Closing Working Capital, Closing Cash, Closing Date Indebtedness, Closing Transaction Expenses, Company will deliver to Parent and the Accounting Rules. Seller shall provide Company reasonable documentation Purchaser a funds flow memorandum in form and access substance reasonably acceptable to relevant personnel as needed Parent and the Purchaser setting forth payment instructions with respect to support calculation of the components of the Pre-Closing Statement prior each payment to be made on the Closing Date. Buyer shall be entitled The Company will consult with Parent, the Purchaser and their accountants with respect to review the Pre-Closing Statement and the materials and information used by the Company in preparing preparation of the Pre-Closing Statement, and the Company shall consider in good faith any comments of Buyer with respect to the Pre-Closing Statement prior will be in form and substance reasonably satisfactory to Parent and the Closing DatePurchaser. The amounts set forth in the Pre-Closing Statement shall will be binding on the Parties for purposes accompanied by reasonably detailed schedules indicating a calculation of the Closing Payments and in the event of any disagreement between the Company and Buyer as to the Pre-Closing StatementEstimated Aggregate Consideration, the Company’s version of Estimated Closing Cash, the Pre-Estimated Closing Statement shall be usedIndebtedness, the Estimated Closing Transaction Expenses, and the Estimated Closing Trade Payables.

Pre-Closing Statement. At least five four (54) Business Days prior to the anticipated Closing Date, the Company shall deliver to Buyer Parent a statement consisting of the Company’s good faith estimates of the following amounts: (i) an estimated calculation of the Closing Cash Amount (the “Estimated Closing Cash Amount”), (ii) an estimated calculation of the Seller Transaction Expenses as of the Closing Date (the “Estimated Seller Transaction Expenses”), (iii) an estimated calculation of the Closing Indebtedness (the “Estimated Closing Indebtedness”), (iv) an estimated calculation of Closing Working Capital (the “Estimated Working Capital”) and the Estimated Working Capital Adjustment, (v) an estimated calculation of the Transaction Tax Benefit Amount (the “Estimated Transaction Tax Benefit Amount”) and (vi) a calculation of the Estimated Merger Consideration (in each case together with backup calculations). Parent may submit any objections in writing to the Company until 5:00 p.m., New York City time, two Business Days prior to the anticipated Closing Date and the Company will cooperate in good-faith with Parent to revise the draft statement to reflect the mutual agreement of the Company and Parent with respect to the estimated amounts set forth in the preceding sentence (as so revised and agreed, the “Pre-Closing Statement”) setting ); provided, that if the Company and Parent cannot reach an agreement with respect to the amounts set forth in the Company’s good faith estimate of (A) the amount of Closing Cash (the “Estimated Cash”)preceding sentence, (B) the Closing Working Capital (the “Estimated Closing Working Capital”), (C) the Closing Date Indebtedness (the “Estimated Closing Date Indebtedness”), (D) the Closing Transaction Expenses (the “Estimated Closing Transaction Expenses”), and (E) based on the foregoing, the calculation of the Adjustment Amount (the “Estimated Adjustment Amount”), together with calculations demonstrating each component thereof, as well as the amount of each Closing Payment. The Pre-Closing Statement shall be prepared in a manner consistent with this Agreement, including the definitions of the terms Closing Working Capital, Closing Cash, Closing Date Indebtedness, Closing Transaction Expenses, and the Accounting Rules. Seller shall provide Company reasonable documentation and access to relevant personnel as needed to support calculation of the components of the Pre-Closing Statement prior to will reflect the Closing Date. Buyer shall be entitled to review the PreCompany’s good-Closing Statement and the materials and information used by the Company in preparing the Pre-Closing Statement, and the Company shall consider in good faith any comments of Buyer estimates with respect to the Pre-Closing Statement prior to the Closing Datesuch amounts. The amounts set forth in the Pre-Closing Statement Estimated Merger Consideration shall be binding on the Parties for purposes of the Closing Payments and in the event of any disagreement between the Company and Buyer subject to adjustment pursuant to this Section 2.11 (as to the Pre-Closing Statementadjusted, the Company’s version of “Merger Consideration”). The Estimated Closing Cash Amount and the Pre-Closing Statement Estimated Working Capital shall be usedprepared in accordance with the Applicable Accounting Principles.