Gas Imbalances As of the Closing Date, except as set forth on Schedule 7.24 or on the most recent certificate delivered pursuant to Section 8.07(c), on a net basis there are no gas imbalances, take or pay or other prepayments with respect to any of the Obligors’ Oil and Gas Properties which would require any such Obligors to deliver, in the aggregate, five percent (5%) or more of the monthly production of Hydrocarbons produced from their Oil and Gas Properties at some future time without then or thereafter receiving fall payment therefor.
Imbalances The parties hereto recognize that with respect to Section 2.01, on any Day, receipts of gas by Union and deliveries of gas by Union may not always be exactly equal, but each party shall cooperate with the other in order to balance as nearly as possible the quantities transacted on a daily basis, and any imbalances arising shall be allocated to the Facilitating Agreements and shall be subject to the respective terms and charges contained therein, and shall be resolved in a timely manner.
Gas Imbalances, Prepayments As of the date hereof, except as set forth on Schedule 7.18 or on the most recent certificate delivered pursuant to Section 8.12(c), on a net basis there are no gas imbalances, take or pay or other prepayments which would require the Borrower or any of its Subsidiaries to deliver, in the aggregate, two percent (2%) or more of the monthly production from Hydrocarbons produced from the Oil and Gas Properties at some future time without then or thereafter receiving full payment therefor.
Post-Closing Adjustments As soon as practicable after the Closing, but in no event later than one hundred eighty (180) days thereafter, Seller shall prepare and deliver to Purchaser a final settlement statement (the “Final Settlement Statement”) setting forth each adjustment or payment that was not finally determined as of the Closing and showing the calculation of such adjustments and the resulting Final Purchase Price. Seller shall make its workpapers and other information available to Purchaser to review in order to confirm the adjustments shown on Seller’s draft. As soon as practicable after receipt of the Final Settlement Statement, but in no event later than sixty (60) days thereafter, Purchaser shall deliver to Seller a written report containing any changes that Purchaser proposes to make to the Final Settlement Statement. Any failure by Purchaser to deliver to Seller the written report detailing Purchaser’s proposed changes to the Final Settlement Statement within sixty (60) days following Purchaser’s receipt of the Final Settlement Statement shall be deemed an acceptance by Purchaser of the Final Settlement Statement as submitted by Seller. The parties shall agree with respect to the changes proposed by Purchaser, if any, no later than sixty (60) days after Seller receives from Purchaser the written report described above containing Purchaser’s proposed changes. If the Purchaser and the Seller cannot then agree upon the Final Settlement Statement, the determination of the amount of the Final Settlement Statement shall be submitted to a mutually agreed firm of independent public accountants (the “Accounting Firm”). The determination by the Accounting Firm shall be conclusive and binding on the parties hereto and shall be enforceable against any party hereto in any court of competent jurisdiction. Any costs and expenses incurred by the Accounting Firm pursuant to this Section 12.1 shall be borne by the Seller and the Purchaser equally. The date upon which such agreement is reached or upon which the Final Purchase Price is established, shall be herein called the “Final Settlement Date.” In the event (a) the Final Purchase Price is more than the Estimated Final Purchase Price, Purchaser shall pay to Seller the amount of such difference, or (b) the Final Purchase Price is less than the Estimated Final Purchase Price, Seller shall pay to Purchaser the amount of such difference, in either event by wire transfer in immediately available funds. Payment by Purchaser or Seller, as the case may be, shall be within five (5) days of the Final Settlement Date.
Post-Closing Adjustment (a) Not more than twenty (20) days after the Closing Date, Purchasers shall deliver to Sellers a certificate of an authorized officer setting forth Purchasers’ calculation, as of the Closing Date, of the Net Working Capital (the “Proposed Closing Net Working Capital”). Such statement shall include separate line items, as of the Closing, for (i) cash and cash equivalents included in the Purchased Assets, (ii) the amount of outstanding accounts receivable included in the Purchased Assets, and (iii) the amount of Assumed Liabilities described in Section 2.7(a). (b) If within ten (10) days following delivery of the Proposed Closing Net Working Capital calculation Sellers have not given Purchasers written notice of their objection to the Proposed Closing Net Working Capital calculation (which notice shall state the basis of Sellers’ objection(s)), then the Proposed Closing Net Working Capital calculated by Purchasers (or any portion of the calculation to which Sellers do not object) shall constitute the “Final Closing Net Working Capital,” shall be binding and conclusive on the Parties. (c) If Sellers give Purchasers timely notice of objection, and if Sellers and Purchasers fail to resolve the issues outstanding with respect to the Proposed Closing Net Working Capital within ten (10) days of Purchasers’ receipt of Sellers’ objection notice, Sellers and Purchasers shall submit the issues remaining in dispute to the Houston office of Deloitte LLP (the “Independent Accountants”) for resolution. If for any reason the Houston office of Deloitte LLP is unwilling to act as the Independent Accountants, the Independent Accounts shall be such other recognized national or regional independent accounting firm mutually acceptable to Purchasers and Sellers. (d) If issues are submitted to the Independent Accountants for resolution, (1) Seller and Purchasers shall furnish or cause to be furnished to the Independent Accountants such work papers and other documents and information relating to the disputed issues as the Independent Accountants may request and are available to that Party or its agents and shall be afforded the opportunity to present to the Independent Accountants any material relating to the disputed issues and to discuss the issues with the Independent Accountants; and (2) the determination by the Independent Accountants, as set forth in a notice to be delivered to both Seller and Purchasers within twenty (20) days of the submission to the Independent Accountants of the issues remaining in dispute, shall constitute the “Final Closing Net Working Capital,” shall be final, binding and conclusive on the Parties and shall be used in computing the Adjustment Amount. The costs and fees related to such determination by the Independent Accountants, including the costs relating to any negotiations with the Independent Accountants with respect to the terms and conditions of such Independent Accountants’ engagement, will be shared equally by Purchasers and Sellers. (e) If the Final Closing Net Working Capital is greater than the Estimated Net Working Capital then within five (5) Business Days of such Final Closing Net Working Capital being provided to the Purchasers, the Purchasers shall issue to Sellers the number of shares (rounded to the nearest whole share) of Hercules Common Stock equal to the quotient of (A) such excess, divided by (B) 3.36, provided that, in no event shall Purchasers be required to issue more than an aggregate of 22,321,425 shares of Hercules Common Stock pursuant to this Agreement, and if Purchasers would otherwise be required, but for this proviso, to issue more shares, then such additional amount owed to Sellers shall be paid in cash in an amount equal to the number of shares exceeding 22,321,425 multiplied by $3.36. If the Estimated Net Working Capital is greater than the Final Closing Net Working Capital, then the Sellers shall return to Purchasers for cancellation the number of Hercules Shares (rounded to the nearest whole share) equal to the quotient of (A) such excess, divided by (B) 3.36.