Common use of Purchase Price Adjustments Clause in Contracts

Purchase Price Adjustments. If the Seller or the Servicer -------------------------- adjusts downward the amount of any Principal Receivable sold to the Purchaser pursuant to this Agreement because of a rebate, refund, unauthorized charge or billing error to an Obligor, or because such Receivable was created in respect of goods or services which were refused, returned or not received by an Obligor, or if the Seller or the Servicer otherwise adjusts downward the amount of any such Principal Receivable without receiving Collections therefor or without charging off such amount as uncollectible, then, in any such case, the Purchase Price otherwise payable on the following Purchase Price Payment Date shall be reduced by the product of the Adjustment Factor for such Purchase Price Payment Date and the amount of such adjustment. Similarly, the Purchase Price otherwise payable on any Purchase Price Payment Date shall be reduced by the product of the Adjustment Factor for such Purchase Price Payment Date and the amount of any Principal Receivable which was discovered during the preceding Collection Period as having been created through a fraudulent or counterfeit charge or with respect to which the covenant contained in Section 5.1(b) was breached. If, as a result of any adjustment or discovery described above, the Purchaser is required to pay any amount to the Servicer for deposit into the Excess Funding Account pursuant to Section 3.8(a) of the Restated Agreement, the Seller shall pay such amount to the Purchaser, in immediately available funds, not later than 2:00 P.M. (New York City time) on the second Business Day following the date of such adjustment or discovery and such amount shall be paid by the Purchaser to the Seller on the following Purchase Price Payment Date. If the Purchase Price Adjustment for any Purchase Price Payment Date would cause the Purchase Price for such Purchase Price Payment Date to be a negative number, the Seller shall pay to the Purchaser on such Purchase Price Payment Date an amount equal to the amount by which such Purchase Price Adjustment exceeds such Purchase Price (calculated before giving effect to such Purchase Price Adjustment).

Purchase Price Adjustments. If (a) Not more than ten Business Days, nor less than five Business Days, prior to the First Closing Date, Parent shall deliver to Purchaser a statement (the “Preliminary First Closing Statement”), duly executed by the Chief Financial Officer or Chief Executive Officer of Parent, setting forth in reasonable detail, and certifying to Purchaser, the Seller or Parties’ good faith calculation (including the Servicer -------------------------- adjusts downward methods of calculation) of: (A) the cumulative amount of the Bridge Loan Interest Expense accrued or incurred since inception through and including February 28, 2009, whether or not due and payable (the “February Cumulative Interest Amount”); (B) the aggregate amount (the “Paid Interest Amount”) of any Principal Receivable sold portion of such Bridge Loan Interest Expense actually paid by the Seller Parties or their respective Affiliates (other than any Subject Entity, LIHTC Fund or any of their respective Subsidiaries) to or on behalf of any LIHTC Fund since inception to February 28, 2009; (C) the Purchaser pursuant actual and projected aggregate amount of the Bridge Loan Interest Expense to this Agreement because of a rebatebe incurred after February 28, refund, unauthorized charge 2009 (the “Future Interest Amount”); (D) any and all Interim Paid Management Fees; (E) any and all Expenses incurred or billing error to an Obligoraccrued by, or because such Receivable was created in respect of goods or services which were refusedon behalf of, returned or not received by an Obligorany Subject Entity, or if LIHTC Fund and outstanding as of May 31, 2009 (the “Interim Accrued Expenses”); and (F) the aggregate amount (the “Paid Interim Expense Amount”) of any portion of such Interim Accrued Expenses actually paid by the Seller Parties or the Servicer otherwise adjusts downward the amount their respective Affiliates as of any such Principal Receivable without receiving Collections therefor or without charging off such amount as uncollectibleMay 31, then, in any such case, the Purchase Price otherwise payable on the following Purchase Price Payment Date 2009. The Seller Parties shall be reduced by the product of the Adjustment Factor for such Purchase Price Payment Date and the amount of such adjustment. Similarly, the Purchase Price otherwise payable on any Purchase Price Payment Date shall be reduced by the product of the Adjustment Factor for such Purchase Price Payment Date and the amount of any Principal Receivable which was discovered during the preceding Collection Period as having been created through a fraudulent or counterfeit charge or consult with Purchaser with respect to which the covenant contained preparation of the Preliminary First Closing Statement and the calculations set forth therein and shall consider in Section 5.1(b) was breachedgood faith any comments to the Preliminary First Closing Statement or the calculation set forth therein that may be provided to Parent by Purchaser. If, as a result of any adjustment or discovery described aboveAt the First Closing, the Purchaser is required to pay any amount to the Servicer for deposit into the Excess Funding Account pursuant to Section 3.8(a) of the Restated Agreement, the Seller shall pay such amount to the Purchaser, in immediately available funds, not later than 2:00 P.M. (New York City time) on the second Business Day following the date of such adjustment or discovery and such amount First Closing Purchase Price shall be paid by the Purchaser to the Seller on the following Purchase Price Payment Date. If the Purchase Price Adjustment for any Purchase Price Payment Date would cause the Purchase Price for such Purchase Price Payment Date to be a negative number, the Seller shall pay to the Purchaser on such Purchase Price Payment Date an amount equal to the amount by which such Purchase Price Adjustment exceeds such Purchase Price (calculated before giving effect to such Purchase Price Adjustment).adjusted as follows:

Purchase Price Adjustments. If (a) The Sellers shall calculate the Seller or the Servicer -------------------------- adjusts downward the net amount of any Principal Receivable sold cash sent between the Feed Intercompany Cash Sweep Account and the Parent Swingline Account from the close of business on the Reference Date (such time, the “Intercompany Account Reference Time”) to the Purchaser pursuant close of business on the day that is one Business Day prior to this Agreement because of a rebate, refund, unauthorized charge or billing error to an Obligor, or because Closing (such Receivable was created in respect of goods or services which were refused, returned or not received by an Obligor, or if the Seller or the Servicer otherwise adjusts downward the amount of any such Principal Receivable without receiving Collections therefor or without charging off such amount as uncollectible, then, in any such casetime, the Purchase Price otherwise payable on “Intercompany Account Measurement Time”). Any net outflow of cash from the following Purchase Price Payment Date shall Feed Intercompany Cash Sweep Account to the Parent Swingline Account will be reduced by the product of the Adjustment Factor for such Purchase Price Payment Date and the amount of such adjustment. Similarly, the Purchase Price otherwise payable on any Purchase Price Payment Date shall be reduced by the product of the Adjustment Factor for such Purchase Price Payment Date and the amount of any Principal Receivable which was discovered during the preceding Collection Period as having been created through a fraudulent or counterfeit charge or with respect to which the covenant contained in Section 5.1(b) was breached. If, expressed as a result positive number, and any net inflow of any adjustment or discovery described above, the Purchaser is required to pay any amount cash to the Servicer for deposit into Feed Intercompany Cash Sweep Account from the Excess Funding Parent Swingline Account pursuant to Section 3.8(a) of the Restated Agreementwill be expressed as a negative number (such amount, the Seller shall pay such amount to the Purchaser, in immediately available funds, not later than 2:00 P.M. (New York City time) on the second Business Day following the date of such adjustment whether expressed as a positive or discovery and such amount shall be paid by the Purchaser to the Seller on the following Purchase Price Payment Date. If the Purchase Price Adjustment for any Purchase Price Payment Date would cause the Purchase Price for such Purchase Price Payment Date to be a negative number, the Seller shall pay “Preliminary Intercompany Account Adjustment Amount”). The Sellers will then subtract from the Preliminary Intercompany Account Adjustment Amount (i) $2,744,616, (ii) $1,300,000 and (iii) any other amounts paid by Westway Group on behalf of any Company or any Company Subsidiary for the benefit of any Company or any Company Subsidiary from the Intercompany Account Reference Time to the Purchaser Intercompany Account Measurement Time which was not otherwise reflected in a cash transfer between the Feed Intercompany Cash Sweep Account and the Parent Swingline Account, including (x) amounts paid or payable by Westway Group as compensation to employees of Westway Canada, any Company or Company Subsidiary between the Intercompany Account Reference Time and the Intercompany Account Measurement Time, including for payroll expenses, 401(k) and other pension contributions, and employee health and welfare benefits at a rate of $825 per employee per month, and (y) an allocation for any real estate taxes for the period between the Intercompany Account Reference Time and the Intercompany Account Measurement Time on any real property owned by Westway Group or any subsidiary of Westway Group (other than any Company or Company Subsidiary) where such Purchase Price Payment Date an amount equal real property was used primarily for the benefit of any Company or Company Subsidiary. The Preliminary Intercompany Account Adjustment Amount as reduced by the immediately preceding sentence will hereafter be referred to as the amount by which such Purchase Price “Intercompany Account Adjustment exceeds such Purchase Price (calculated before giving effect to such Purchase Price Adjustment)Amount.” A sample calculation of the Intercompany Account Adjustment Amount is attached hereto as Exhibit B.

Purchase Price Adjustments. If (1) Within 60 days after the Seller or the Servicer -------------------------- adjusts downward the amount of any Principal Receivable sold to the Purchaser pursuant to this Agreement because of a rebate, refund, unauthorized charge or billing error to an Obligor, or because such Receivable was created in respect of goods or services which were refused, returned or not received by an Obligor, or if the Seller or the Servicer otherwise adjusts downward the amount of any such Principal Receivable without receiving Collections therefor or without charging off such amount as uncollectible, then, in any such case, the Purchase Price otherwise payable on the following Purchase Price Payment Date shall be reduced by the product of the Adjustment Factor for such Purchase Price Payment Date and the amount of such adjustment. Similarly, the Purchase Price otherwise payable on any Purchase Price Payment Date shall be reduced by the product of the Adjustment Factor for such Purchase Price Payment Date and the amount of any Principal Receivable which was discovered during the preceding Collection Period as having been created through a fraudulent or counterfeit charge or with respect to which the covenant contained in Section 5.1(b) was breached. If, as a result of any adjustment or discovery described above, the Purchaser is required to pay any amount to the Servicer for deposit into the Excess Funding Account pursuant to Section 3.8(a) of the Restated AgreementClosing, the Seller shall pay such amount prepare and deliver to the PurchaserBuyer statements (each, an "Adjustment Statement") which reflect (i) the number of barrels of petroleum oil inventory at or in immediately available fundsconnection with the Purchased Assets as of the Closing Date, not later than 2:00 P.M. (New York City timeii) on the second Business Day following the date of such adjustment or discovery Maintenance and such amount shall be paid by the Purchaser Capital Expenditures Amount applicable to the Seller on Purchased Assets and (iii) the following Employee Transition Credit for any employees who were expected to become employees of the Buyer for purposes of the Estimated Purchase Price Payment Datebut who did not (the "ETC Adjustment"). If For each barrel of fuel oil inventory at or in connection with the Purchase Price Adjustment for any Purchase Price Payment Purchased Assets as of the Closing Date would cause the Purchase Price for such Purchase Price Payment Date to be a negative numberless than 1.5 million barrels, the Seller shall pay to the Purchaser Buyer the amount of $15.00. For each barrel of fuel oil inventory at or in connection with the Purchased Assets as of the Closing Date in excess of 1.5 million barrels, the Buyer shall pay to the Seller the lesser of (x) $15.00 per barrel or (y) the Seller's actual delivered cost for each such barrel of fuel oil, as reflected on the books of the Seller and assuming the first-in, first-out method of inventory accounting. The aggregate amount of all such per barrel payments is the "Oil Inventory Adjustment Amount." The Maintenance and Capital Expenditures Amount, the Oil Inventory Adjustment Amount (if positive) and the ETC Adjustment shall be additions to the Purchase Price and the Oil Inventory Adjustment Amount, if negative, shall be a subtraction from the Purchase Price. The Oil Inventory Adjustment Amount, the Maintenance and Capital Expenditures Amount and the ETC Adjustment are referred to collectively as the "Adjustment Amount." Each Adjustment Statement shall be prepared using the same generally accepted accounting principles, policies and methods as the Seller has historically used in connection with the calculation of the items reflected on such Purchase Price Payment Date an amount equal Adjustment. The Buyer agrees to cooperate with the Seller in connection with the preparation of each Adjustment Statement and related information, and shall provide to the amount by which Seller such Purchase Price Adjustment exceeds such Purchase Price (calculated before giving effect books, records, and information as may be reasonably requested from time to such Purchase Price Adjustment)time.

Purchase Price Adjustments. If At Closing, Seller shall sell the Property and Purchaser shall buy the same, in accordance with the terms of this Option Contract. The total purchase price to be paid by Purchaser to Seller is ____________________________________ Dollars ($__________________) (the “Purchase Price”) payable by certified check or the Servicer -------------------------- adjusts downward the amount of any Principal Receivable sold by such means as shall be satisfactory to Seller. All rents, real estate taxes, insurance premiums, interest, subdivision assessments and utility charges (if any) relating to the Property, except as hereinafter provided, shall be prorated and adjusted as of Closing, in accordance with generally accepted principles of real estate closing, with Seller having the last day and such adjustments shall be added to or subtracted from the price as determined. Notwithstanding the foregoing, Purchaser pursuant is responsible for all costs of recording and Closing. TRANSFER AND CONDITION OF TITLE Purchaser shall have 30 days from the Option Date to obtain a title commitment for the Property from the Title Company (the “Title Commitment”) and advise Seller in writing that the condition of title is defective, in which event such written notice shall detail the manner in which title is defective. If Purchaser notifies Seller that title is defective, Seller shall have 30 days from receipt of such notice within which it may attempt to cure such defects. Nothing herein obligates Seller to cure such defects. If Seller does not cure such defects within the allotted time, Purchaser may elect within 10 days after the expiration of the earlier of (i) Seller’s written notice to Purchaser refusing to cure any such defects or (ii) said 30 day period, either to terminate this Agreement because Option Contract without further liability of a rebatethe parties hereunder, refund, unauthorized charge or billing error to an Obligorexcept as expressly provided herein, or because Purchaser may accept such Receivable was created title as Seller is able to convey, without a reduction in respect of goods or services which were refused, returned or not received by an Obligor, or if the Seller or the Servicer otherwise adjusts downward the amount of any such Principal Receivable without receiving Collections therefor or without charging off such amount as uncollectible, then, in any such case, the Purchase Price otherwise payable on Price. If Purchaser fails to notify Seller under this paragraph within the following Purchase Price Payment Date applicable time periods provided above either that the condition of title is unacceptable or that Purchaser elects to terminate this Contract, Purchaser shall be reduced deemed to have accepted the condition of title as shown in the Title Commitment and the parties shall proceed to Closing. Purchaser shall pay for all title charges, including all Title Commitment and title policy charges and all other fees for services rendered by the product of the Adjustment Factor for such Purchase Price Payment Date and the amount of such adjustmentTitle Company. Similarly, the Purchase Price otherwise payable on any Purchase Price Payment Date shall be reduced by the product of the Adjustment Factor for such Purchase Price Payment Date and the amount of any Principal Receivable which was discovered during the preceding Collection Period as having been created through a fraudulent or counterfeit charge or with respect to which the covenant contained in Section 5.1(b) was breached. If, If Purchaser terminates this Option Contract as a result of Seller’s failure to cure any adjustment stated defects, then the Option Fee shall be returned to Purchaser. The Closing Date shall be extended if necessary to account for the time periods set forth herein. On the Closing Date, Seller shall convey the Property to Purchaser by means of a Special Warranty Deed in the form attached hereto as Exhibit B and made a part hereof, including the restrictions upon use of the Property listed therein. Possession of the Property shall be delivered to Purchaser at time of transfer of title. Sewer service charge (if any) and taxes due and payable on the Closing Date shall be prorated and adjusted on the Closing Date. Attached hereto as Exhibit C is a mutually satisfactory narrative detailing the size, scope and nature of Purchaser’s proposed development of the Property (the “Property Use Description”). Regarding Purchaser’s improvements to the Property as set forth in the Property Use Description, Purchaser represents, warrants and covenants to Seller the following: Purchaser shall construct the improvements on the Property as per the Property Use Description (the “Project”). Construction on the Project shall commence within 12 months of the Closing Date (the “Commencement Date”) and be completed within 30 months after such commencement (the “Completion Date”). On the Completion Date, Purchaser shall send Seller a written notice of completion. Purchaser acknowledges and agrees that the loss and damages to Seller arising from Purchaser’s failure to abide by the Commencement Date and Completion Date would be an uncertain amount that is difficult to ascertain or discovery described aboveprove, and as such, the Purchaser is required to pay any amount to the Servicer for deposit into the Excess Funding Account pursuant to Section 3.8(a) of the Restated Agreement, parties agree that the Seller shall pay such amount have its election of the following remedies: (a) liquidated damages for failure to complete construction by the Purchaser, in immediately available funds, not later than 2:00 P.M. (New York City time) on the second Business Day following the date of such adjustment or discovery and such amount Completion Date shall be paid by the Purchaser to the Seller on the following Purchase Price Payment Date. If the Purchase Price Adjustment for any Purchase Price Payment Date would cause the Purchase Price for such Purchase Price Payment Date to be a negative number, the Seller shall pay to the Purchaser on such Purchase Price Payment Date an amount equal to 25% of the Purchaser Price (“Liquidated Damaged”) or (b) if Purchaser fails to complete construction by the Completion Date, Seller may buy back the Property for an amount by which such Purchase Price Adjustment exceeds such equal to 70% of the Purchase Price (calculated “Buy Back”). At Closing, Purchaser shall execute a deed in the form attached hereto as Exhibit D (the “Buy Back Deed”) to be held in escrow by the Title Company pursuant to the escrow agreement attached hereto as Exhibit E (the “Escrow Agreement”), which shall also be executed by all parties at Closing. In the event that the Project commenced on or before giving effect the Commencement Date and was completed on or before the Completion Date, the Buy Back Deed and Escrow Agreement shall be released and deemed terminated, respectively. If Purchaser fails to commence work on the Project by the Commencement Date or complete the Project by the Completion Date, Seller shall give the Purchaser written notice of the same, and if Purchaser fails to cure within fifteen (15) days after the notice is sent, Seller shall elect in writing to Purchaser Liquidated Damages or Buy Back. In the event Seller elects Buy Back, the parties shall proceed to convey the Property to Seller subject only to title exceptions approved by Seller. The final recording of the Buy Back Deed to Seller shall occur only upon Seller’s final approval of the condition of the Property and shall be subject to Seller’s receipt of a title commitment satisfactory to Seller, in Seller’s sole and absolute discretion. Purchaser shall execute all affidavits, waivers, and other documents required by the Title Company to convey the Property to Seller in accordance with this Section. Purchaser shall be responsible to pay all title and closing costs and shall pay any taxes, assessments, or other fees incurred during Purchaser’s ownership of the Property or otherwise necessary to convey the Property to Seller in satisfactory condition. The parties agree that no broker’s commission shall be due in connection with the conveyance of the Property to Seller under this Section. If the Property is not in a condition that is acceptable to Seller, it Seller’s sole and absolute discretion, Seller may by written notice to Purchaser change its election to Liquidated Damages. In the event Seller elects Liquidated Damages, the parties further agree that Purchaser shall pay any liquidated damages owed to Seller pursuant to this Section immediately upon demand. Notwithstanding the foregoing, Purchaser shall not be liable or responsible for any delays due to strikes, riots, acts of God, shortages of labor or materials, war, governmental laws, regulations, or restrictions, or any other causes of any kind whatsoever which are beyond the reasonable control of the responsible party and these delays shall be excluded from the computation of any periods of time when calculating the Commencement Date and the Completion Date, so long as Purchaser provides Seller with written notice of such force majeure events within 10 business days after their occurrence. The foregoing covenants shall survive the Closing. If Purchaser’s use of the Property requires the subdivision or resubdivision or the Property, Purchaser shall at its sole cost and expense, comply with all laws and regulations pertaining to subdividing the Property. If any material part of the improvements on the Property is destroyed or materially damaged (excluding ordinary wear and tear) prior to Closing Date, Seller shall give notice to Purchaser of such damage or destruction and of Seller’s insurance coverage. Purchaser shall elect within 15 business days thereafter by written notice to Seller either: (a) to terminate this Option Contract, in which event the Option Fee shall be refunded to Purchaser; or (b) to close the transaction contemplated hereby, in which event the Purchase Price Adjustment)shall not be reduced but Seller shall assign to Purchaser Seller’s rights in any insurance proceeds paid or payable to Seller in connection with such damage or destruction. If Purchaser does not give written notice of termination to Seller timely, then Purchaser shall be deemed to have elected to close the transaction contemplated hereby in accordance with clause (b) of this section. If this Option Contract is terminated as provided in clause (a) of this section then the parties shall have no further rights or obligations under this Option Contract except those that expressly survive the termination of this Option Contract.

Purchase Price Adjustments. If (a) No later than 75 days following the Closing, Purchaser shall cause to be prepared and delivered to Seller or a statement (the Servicer -------------------------- adjusts downward “Post-Closing Payment Statement”) setting forth (i) Purchaser’s good faith calculation of the aggregate amount of any Principal Receivable sold to the Purchaser pursuant to this Agreement because Cash Equivalents, (ii) Purchaser’s good faith calculation of a rebatethe Net Working Capital and the resulting amount, refundif any, unauthorized charge by which the Net Working Capital is less than (or billing error to an Obligorgreater than) Target Working Capital, or because such Receivable was created (iii) Purchaser’s good faith estimate of the Closing Indebtedness, (iv) Purchaser’s calculation of the Aggregate Purchase Price based on the foregoing and (v) Purchaser’s calculation of the Loan Receivables. If Seller accepts the Post-Closing Payment Statement in respect of goods or services which were refused, returned or not received by an Obligorwriting, or if Seller fails to notify Purchaser of any dispute with respect thereto within 30 days following receipt thereof, then the calculation of the Aggregate Purchase Price and the components thereof and Purchaser’s calculation of the Loan Receivables as set forth in the Post-Closing Payment Statement shall be deemed final and conclusive and binding upon all parties. If Seller disputes the accuracy of the calculation of the Aggregate Purchase Price or any component thereof or the Servicer otherwise adjusts downward calculation of the amount Loan Receivables set forth in the Post-Closing Payment Statement, Seller shall provide written notice to Purchaser no later than 30 days following receipt of the Post-Closing Payment Statement (the “Dispute Notice”), setting forth in reasonable detail those items that Seller disputes, the amounts of any such Principal Receivable without receiving Collections therefor or without charging off such amount as uncollectible, then, adjustments that are necessary in any such case, Seller’s judgment for the computation of the Aggregate Purchase Price otherwise payable on or the components thereof or the calculation of the Loan Receivables to conform to the requirements of this Agreement, and the basis for its suggested adjustments. During the 30-day period following delivery of a Dispute Notice, Purchaser and Seller will negotiate in good faith with a view to resolving their disagreements over the disputed items. From and after the delivery of the Post-Closing Payment Statement to Seller and until the final determination of the Aggregate Purchase Price Payment Date shall and the Loan Receivables in accordance with this Section 2.6, Seller and its agents will be reduced by provided with such reasonable access during normal business hours to the product relevant portions of the Adjustment Factor for such Purchase Price Payment Date financial books and the amount of such adjustment. Similarly, the Purchase Price otherwise payable on any Purchase Price Payment Date shall be reduced by the product records of the Adjustment Factor for such Purchase Price Payment Date Company and the amount of any Principal Receivable which was discovered during the preceding Collection Period as having been created through a fraudulent or counterfeit charge or with respect to which the covenant contained in Section 5.1(b) was breached. If, as a result of any adjustment or discovery described above, the Purchaser is required to pay any amount its Subsidiary and access to the Servicer for deposit into the Excess Funding Account pursuant to Section 3.8(a) agents and employees of the Restated AgreementCompany and its Subsidiary (including independent accountants and their work papers, the subject to execution of customary access papers) as Seller shall pay such amount may reasonably request to enable it to respond to the Purchaser, in immediately available funds, not later than 2:00 P.M. (New York City time) on the second Business Day following the date of such adjustment or discovery and such amount shall be paid by the Purchaser to the Seller on the following Purchase Price Post-Closing Payment DateStatement. If the parties resolve their differences over the disputed items in accordance with the foregoing procedure, the Aggregate Purchase Price Adjustment for any Purchase Price Payment Date would cause and the Purchase Price for Loan Receivables shall be the amount agreed upon by them. If the parties fail to resolve their differences over the disputed items within such Purchase Price Payment Date to be a negative number30-day period, the then Purchaser and Seller shall pay forthwith jointly engage the Accounting Arbitrator to make a binding determination as to the Purchaser on such Purchase Price Payment Date an amount equal to the amount by which such Purchase Price Adjustment exceeds such Purchase Price (calculated before giving effect to such Purchase Price Adjustment).disputed items in accordance with this Agreement. The “

Purchase Price Adjustments. If (a) Within twenty (20) business days following the end of the calendar month in which the Closing occurs, Seller or shall deliver to Purchaser a statement (“Seller’s Statement”) showing a balance sheet for the Servicer -------------------------- adjusts downward Business as of the amount Closing Date (“Closing Balance Sheet”) and the actual Net Asset Value as of the Closing Date (the “Actual Closing Net Asset Value”) along with the computation of such value and the recalculation of final Purchase Price using the Actual Closing Net Asset Value in lieu of Estimated Net Asset Value and in the determination of the Additional Amount and any Principal Receivable sold necessary resulting adjustment (“Adjustment”) to the Purchaser pursuant to this Agreement because of a rebate, refund, unauthorized charge or billing error to an Obligor, or because such Receivable was created in respect of goods or services which were refused, returned or not received by an Obligor, or if the Seller or the Servicer otherwise adjusts downward the amount of any such Principal Receivable without receiving Collections therefor or without charging off such amount as uncollectible, then, in any such case, the Purchase Price otherwise payable amount paid at Closing. The Closing Balance Sheet and the preparation of the Actual Closing Net Asset Value shall be prepared on a basis consistent with the preparation of the Estimated Net Asset Value as set forth in Section 1.01(b). Purchaser shall cooperate with Seller and its representatives in preparing such statement including providing reasonable access to the Records and the assistance of Purchaser’s employees. Such statement shall become final and binding on the following parties except to the extent Purchaser notifies Seller on or before the tenth business day after delivery of Seller’s Statement of Purchaser’s disagreement with such statement along with Purchaser’s computation of the Actual Closing Net Asset Value and final Purchase Price Payment Date in reasonable detail (“Disagreement Notice”); provided that Purchaser shall be reduced by not notify Seller of any dispute unless there is a reasonable basis for all such disputes to result in an Adjustment in the product aggregate in excess of $50,000 (excluding interest) from the Adjustment shown in Seller’s Statement. If Purchaser so notifies Seller, the parties shall negotiate in good faith regarding such disagreement with the computation of the Adjustment Factor for such Actual Closing Net Asset Value and final Purchase Price Payment Date and the amount of such adjustment. Similarly, the Purchase Price otherwise payable on any Purchase Price Payment Date shall be reduced by the product of the Adjustment Factor for such Purchase Price Payment Date and the amount of any Principal Receivable which was discovered during the preceding Collection Period as having been created through a fraudulent or counterfeit charge or with respect to which the covenant contained in Section 5.1(b) was breached. If, as a result of any adjustment or discovery described above, the Purchaser is required to pay any amount to the Servicer for deposit into the Excess Funding Account pursuant to Section 3.8(a) of the Restated Agreement, the Seller shall pay such amount to the Purchaser, in immediately available funds, not later than 2:00 P.M. (New York City time) on the second Business Day following the date of such adjustment or discovery and such amount shall be paid by the Purchaser to the Seller on the following Purchase Price Payment DatePrice. If the parties fail to agree on the Actual Closing Net Asset Value and final Purchase Price Adjustment for any Purchase Price Payment Date would cause within 30 days of receipt by Seller of the Purchase Price for such Purchase Price Payment Date to be a negative numberDisagreement Notice, the Seller parties shall pay go to the Purchaser arbitration on such Purchase Price Payment Date an amount equal to the amount by which such Purchase Price Adjustment exceeds such Purchase Price (calculated before giving effect to such Purchase Price Adjustmenttheir disagreement as provided in Section 1.05(b).

Purchase Price Adjustments. If Purchaser makes any repairs, accepts any returns or grants any allowances from and after the Closing Date, in compliance with the return or warranty policy of Seller published by Seller on or prior to the Closing Date, relating to any product produced or sold by Seller on or prior to the Closing Date, Purchaser shall do so as agent of Seller without any liability to Seller or anyone else by so acting, and the Servicer -------------------------- adjusts downward the amount of any Principal Receivable sold to the Purchaser pursuant to this Agreement because of a rebatecosts associated with such returns, refund, unauthorized charge repairs or billing error to an Obligor, or because such Receivable was created in respect of goods or services which were refused, returned or not received by an Obligor, or if the Seller or the Servicer otherwise adjusts downward the amount of any such Principal Receivable without receiving Collections therefor or without charging off such amount as uncollectible, then, in any such case, the Purchase Price otherwise payable on the following Purchase Price Payment Date allowances shall be reduced promptly reimbursed by the product of the Adjustment Factor for such Purchase Price Payment Date and the amount of such adjustment. Similarly, the Purchase Price otherwise payable on any Purchase Price Payment Date shall be reduced by the product of the Adjustment Factor for such Purchase Price Payment Date and the amount of any Principal Receivable which was discovered during the preceding Collection Period as having been created through a fraudulent or counterfeit charge or with respect to which the covenant contained in Section 5.1(b) was breached. If, as a result of any adjustment or discovery described above, the Purchaser is required to pay any amount to the Servicer for deposit into the Excess Funding Account pursuant to Section 3.8(a) of the Restated Agreement, the Seller shall pay such amount to the Purchaser, in immediately available funds, not later than 2:00 P.M. (New York City time) on the second Business Day following the date of such adjustment or discovery and such amount shall be paid by the Purchaser to the Seller on the following Purchase Price Payment Date. If the Purchase Price Adjustment Date. With respect to any return, the costs associated with such return to be credited to Purchaser shall be equal to the excess of (I) the sum of (a) the retail price to be credited to the customer plus (b) any merchant costs associated with crediting the customer, plus (c) any return shipping costs covered or reimbursed (together with (a) and (b) the “Full Retail Cost”) over (II) the Net Inventory Cost for the returned item. For purposes hereof, “Net Inventory Cost” for any Purchase Price Payment Date would cause returned item shall equal the “cost of goods sold” for that item. The costs of repairs shall be the actual out of pocket costs incurred by Purchaser in making such repair. In the event that Purchaser shall reasonably determine that any items returned are broken, damaged or unable to be sold as new (such items “Damaged Goods”), Seller shall indemnify Purchaser for the Full Retail Cost of such items and upon return of any Damaged Goods to Purchaser, Purchaser shall deliver the Damaged Goods to Seller at Seller’s expense. Notwithstanding anything contained herein or in any Transaction Agreement to the contrary, Seller shall be permitted through the date which is the 30th day following the Purchase Price Adjustment Date (as herein defined) to liquidate the Damaged Goods on Odimo’s Ebay clearance site, provided, that Seller shall not reference Purchaser, xxx.xxxxxxxxxxxxxx.xxx, or the WOW Business in connection with the liquidation of such Damaged Goods. Purchaser and Seller shall use their respective commercially reasonable best efforts to work together on repairs, returns and allowances for all items returned for credit, exchange or repairs. On or before the last day of each month following the Closing Date (or, if such Purchase Price Payment Date to be date is not a negative numberBusiness Day, the Seller shall pay to the Purchaser on first Business Day thereafter) (each such Purchase Price Payment Date an amount equal to the amount by which such date, a “Purchase Price Adjustment exceeds such Purchase Price Date”) continuing until 180 days following the Closing Date, Purchaser shall present Seller with a schedule of all returns, repairs and allowances that have been transacted by Purchaser hereunder during the immediately preceding month (calculated before giving effect the “Return and Repair Schedule”) and Seller shall reimburse Purchaser for any amount amounts owed to such Purchase Price AdjustmentPurchaser under this Section 2.1(b). Notwithstanding the foregoing, Seller shall not be required to reimburse Purchaser for any amounts related to returns or warranty repairs of SWI watches.

Purchase Price Adjustments. If The purchase price is based upon the Seller Corporation having Net Working Capital of zero and a liability for unearned or deferred revenue, as such amounts are determined in accordance with generally accepted accounting principles ("Unearned Revenue") of zero at Closing. To the Servicer -------------------------- adjusts downward the amount of any Principal Receivable sold extent Corporation's Net Working Capital at Closing is less than or greater than zero and to the Purchaser pursuant to this Agreement because of a rebate, refund, unauthorized charge or billing error to an Obligor, or because such Receivable was created in respect of goods or services which were refused, returned or not received by an Obligor, or if the Seller or the Servicer otherwise adjusts downward the amount of any such Principal Receivable without receiving Collections therefor or without charging off such amount as uncollectible, then, in any such caseextent Corporation's aggregate liability for Unearned Revenue at Closing is greater than zero, the Purchase Price otherwise payable on the following Purchase Price Payment Date shall will be reduced by the product of the Adjustment Factor for such Purchase Price Payment Date and the amount of such adjustment. Similarly, adjusted as follows: (i) the Purchase Price otherwise payable on any shall be increased dollar for dollar to the extent Net Working Capital is greater than zero and decreased dollar for dollar to the extent Net Working Capital is less than zero; and (ii) the Purchase Price Payment Date shall be reduced decreased by an amount equal to fifty percent (50%) of the aggregate Unearned Revenue. The adjustment to the Purchase Price required by this subsection (b)(i), if any (the "Purchase Price Adjustment"), shall be estimated by Corporation, in consultation with the Purchaser, as of Closing and adjusted following the Closing in accordance with subsections (ii) and (iii) below. The Purchase Price Adjustment shall be estimated as of the Closing ("Interim Purchase Price Adjustment") based upon a balance sheet of the Corporation as of November 30, 2005 to be prepared by the product Purchaser and Corporation jointly as set forth herein (the "Interim Balance Sheet") and delivered to Purchaser not later than December 15, 2005. The Corporation shall prepare the Interim Balance Sheet in accordance with accounting principles consistently applied with prior periods of the Adjustment Factor for such Corporation based upon the Business Books and Records and shall prepare an Interim Purchase Price Payment Adjustment based on such Interim Balance Sheet. Purchaser (and its certified public accountant) shall have the right to participate in the preparation of the Interim Balance Sheet and Interim Purchase Price Adjustment and to review fully all work papers and audit procedures relating thereto in order to confirm that the Interim Balance Sheet and Interim Purchase Price Adjustment have been prepared in accordance with this subsection (b)(ii). Within ninety (90) days following the Closing, Purchaser (and its certified public accountant) shall prepare and provide to Seller an audited balance sheet of Corporation as of the Closing Date (the "Closing Balance Sheet") which balance sheet shall be prepared in accordance with generally accepted accounting principles and consistent with prior periods of Corporation (to the extent such consistency and periods do not conflict with generally accepted accounting principles) and shall prepare and provide to Seller a final Purchase Price Adjustment (the "Final Purchase Price Adjustment") based on such Closing Balance Sheet. In connection therewith Purchaser shall also prepare and provide to Seller a schedule showing the difference between the Interim Purchase Price Adjustment and the amount of Final Purchase Price Adjustment and any Principal Receivable which was discovered during the preceding Collection Period as having been created through a fraudulent amounts due to or counterfeit charge or with respect to which the covenant contained in Section 5.1(b) was breached. If, due from Purchaser as a result of such difference. If the Seller disputes such proposed adjustment, the Seller shall, within ten (10) days following the effective date of Purchaser's notice, give Purchaser written notice that such adjustment is disputed and its basis therefor. Thereafter, the Seller and Purchaser shall negotiate in good faith to resolve such dispute. If, after a period of thirty (30) days following the date on which the Purchaser gives the Seller written notice of any proposed adjustment, such adjustment still remains disputed, Purchaser and the Seller will jointly engage a nationally-recognized accounting firm mutually satisfactory to the Purchaser and the Seller or, if they cannot agree, an independent accounting firm of 200 or discovery described abovemore accountants chosen by lot (with each of Purchaser and the Seller having the right to select two of such firms (which cannot be the auditor for either Purchaser or Corporation) and to strike one such firm chosen by the other party) (the "Independent Accountant") to resolve such dispute regarding such adjustment in accordance with this Agreement, and the decision of such firm shall be final and binding on the parties hereto. Payment required by any post-closing adjustment to the Interim Purchase Price Adjustment pursuant to this subsection (b)(iii) shall be tendered in cash in immediately available funds within three (3) business days after the earlier of the agreement of the parties on the amount thereof or a written notice of any resolution of such amount has been given by the Independent Accountant to the parties hereunder. All fees and expenses of the Independent Accountant incurred in connection with such resolution shall be shared equally between the parties. Purchase Price Refund. The parties hereto acknowledge that the continued efforts of Shareholder are essential to the success of the Business and, in the absence of Shareholder's continuing to work for the Business following Closing, the Business would have less value and the Purchase Price would have been smaller. In accordance with such acknowledgement and to assure Purchaser receives the benefit of the bargain, the parties agree that if the Shareholder's employment with the Purchaser is required terminated prior to pay any amount October 31, 2006 either (i) by Purchaser With Cause (as defined in the Employment Agreement), and the act or omission giving rise to the Servicer for deposit into termination has a substantial adverse affect on the Excess Funding Account Business or Purchaser or (ii) by Shareholder without Good Reason (as defined in the Employment Agreement), Seller will refund to Purchaser a portion of the Purchase Price as in Section 1.03(c)(ii) below. Any payment due pursuant to Section 3.8(a) of the Restated Agreement, the Seller this provision shall pay such amount to the Purchaser, be due and payable in immediately available fundsfunds on the third business day following the date Purchaser designates as the separation date terminating Shareholder's employment. If the separation date occurs on or prior to January 31, not later than 2:00 P.M. 2006, then Seller shall refund one million dollars (New York City time$1,000,000). Thereafter the refund amount shall reduce by one hundred eleven thousand dollars ($111,000) on February 1, 2006 and an additional one hundred eleven thousand ($111,000) on the second Business Day following the date first day of such adjustment or discovery and such amount each calendar month thereafter. Each monthly amount, as so calculated, shall be paid by the Purchaser to the Seller on the following Purchase Price Payment Date. If the Purchase Price Adjustment effective for any Purchase Price Payment Date would cause the Purchase Price for such Purchase Price Payment Date to be a negative number, the Seller shall pay to the Purchaser on such Purchase Price Payment Date an amount equal to the amount by which such Purchase Price Adjustment exceeds such Purchase Price (calculated before giving effect to such Purchase Price Adjustment)termination having a separation date occurring within that month.

Purchase Price Adjustments. If (a) With respect to all Agreed Title Defects, a Purchase Price adjustment shall be made under Section 3.3 by reducing the Seller or Purchase Price by the Servicer -------------------------- adjusts downward the amount aggregate of any Principal Receivable sold all Title Defect Amounts attributable to the Purchaser such Agreed Title Defects (as finally determined pursuant to this Agreement because Article 8) but only if and to the extent that (x) the sum of a rebate, refund, unauthorized charge or billing error (i) all Title Defect Amounts attributable to such Agreed Title Defects and (ii) all Environmental Defect Amounts for which Buyer is entitled to an Obligoradjustment to the Purchase Price pursuant to Article 9 exceeds (y) the Defect Deductible, or because and then only to the extent of such Receivable was created excess, it being understood and agreed that the Title Defect Amounts of all Agreed Title Defects shall be applied first to the Defect Deductible until (A) the Title Defect Amounts of all Agreed Title Defects and all Environmental Defect Amounts for which Buyer is entitled to an adjustment to the Purchase Price pursuant to Article 9, in each case, that have been applied to the Defect Deductible, equals (B) the Defect Deductible. With respect to all Agreed Title Benefits, a Purchase Price adjustment shall be made under Section 3.2 only by offsetting any decreases to the Purchase Price resulting from Agreed Title Defects by the aggregate of the Title Benefit Amounts attributable to such Agreed Title Benefits (as finally determined pursuant to this Article 8). Notwithstanding anything to the contrary in this Article 8, the aggregate adjustment to the Purchase Price made in respect of goods or services which were refusedAgreed Title Benefits, returned or if any, shall not received by an Obligor, or if exceed the Seller or the Servicer otherwise adjusts downward the amount aggregate of any such Principal Receivable without receiving Collections therefor or without charging off such amount as uncollectible, then, in any such case, adjustment to the Purchase Price otherwise payable on the following Purchase Price Payment Date shall be reduced by the product of the Adjustment Factor for such Purchase Price Payment Date and the amount of such adjustment. Similarlymade pursuant to this Article 8, the Purchase Price otherwise payable on any Purchase Price Payment Date shall be reduced by the product of the Adjustment Factor for such Purchase Price Payment Date and the amount of any Principal Receivable which was discovered during the preceding Collection Period as having been created through a fraudulent or counterfeit charge or with respect to which the covenant contained in Section 5.1(b) was breached. If, as a result of any adjustment or discovery described above, the Purchaser is required to pay any amount to the Servicer for deposit into the Excess Funding Account pursuant to Section 3.8(a) of the Restated Agreement, the Seller shall pay such amount to the Purchaser, in immediately available funds, not later than 2:00 P.M. (New York City time) on the second Business Day following the date of such adjustment or discovery and such amount shall be paid by the Purchaser to the Seller on the following Purchase Price Payment Date. If the Purchase Price Adjustment for any Purchase Price Payment Date would cause the Purchase Price for such Purchase Price Payment Date to be a negative number, the Seller shall pay to the Purchaser on such Purchase Price Payment Date an amount equal to the amount by which such Purchase Price Adjustment exceeds such Purchase Price (calculated before giving effect to such Purchase Price Adjustment)Agreed Title Defects.

Purchase Price Adjustments. If (a) As used herein: (i) “Final CEBARRA Purchase Price” means (A) the Seller or Base CEBARRA Purchase Price, plus (B) the Servicer -------------------------- adjusts downward Final Additional CEBARRA Equity Amount, if any, minus (C) the amount of any Principal Receivable sold to Final CEBARRA Leakage Amount, if any, plus (D) the Purchaser applicable Closing Interest, minus (E) Consent Fees and Expenses, if any, in each case as finally determined pursuant to this Section 2.3. (ii) “Final CELSEPAR Purchase Price” means (A) the Base CELSEPAR Purchase Price plus (B) the Final Additional CELSEPAR Equity Amount, if any, minus (C) the Final CELSEPAR Leakage Amount, if any, minus (D) the Closing Debt Payment, minus (E) the Closing EPC Payment, plus (F) the applicable Closing Interest, minus (G) Consent Fees and Expenses, if any, minus (H) the CELSEPAR Credit Agreement because of a rebateAmortization Payments, refundif any, unauthorized charge or billing error to an Obligorminus (I) the EPC Payment Agreement Payments, or because such Receivable was created in respect of goods or services which were refused, returned or not received by an Obligor, or if the Seller or the Servicer otherwise adjusts downward the amount of any such Principal Receivable without receiving Collections therefor or without charging off such amount as uncollectible, thenany, in any such caseeach case as finally determined pursuant to this Section 2.3. (b) After the Closing, Buyer shall have one hundred twenty (120) days to deliver to Sellers a statement (the “Preliminary Post-Closing Statement”) that shall set out Buyer’s calculation of the Final CEBARRA Purchase Price otherwise payable on and the following Final CELSEPAR Purchase Price Payment Date shall be reduced by Price, quantifying each component listed in Section 2.3(a) and any applicable adjustment to the product Sellers’ Closing Statement, together with reasonable documentation sufficient to allow Sellers and their Representatives to verify each of the Adjustment Factor for foregoing and such Purchase Price Payment Date and the amount of such adjustmentother documentation as Sellers may reasonably request. Similarly, the Purchase Price otherwise payable If Buyer does not deliver a Preliminary Post-Closing Statement on any Purchase Price Payment Date shall be reduced by the product of the Adjustment Factor for such Purchase Price Payment Date and the amount of any Principal Receivable which was discovered during the preceding Collection Period as having been created through a fraudulent or counterfeit charge or with respect to which the covenant contained in Section 5.1(b) was breached. If, as a result of any adjustment or discovery described above, the Purchaser is required to pay any amount prior to the Servicer for deposit into one hundred twentieth (120th) day after the Excess Funding Account pursuant to Section 3.8(a) of Closing, then the Restated Agreement, Sellers’ Closing Statement shall become final and binding upon the Seller Parties and Buyer shall pay such amount to the Purchaser, in immediately available funds, not later than 2:00 P.M. (New York City time) on the second Business Day following the date of such adjustment or discovery release and such amount shall be paid by the Purchaser to the Seller on the following Purchase Price Payment Date. If the Purchase Price Adjustment for any Purchase Price Payment Date would cause the Purchase Price for such Purchase Price Payment Date to be a negative number, the Seller shall pay to the Purchaser on such Purchase Price Payment Date each Seller an amount equal to such Seller’s Allocable Portion of the amount by which such Purchase Price Adjustment exceeds such Purchase Price (calculated before giving effect to such Purchase Price Adjustment)CEBARRA Holdback Amount and of the CELSEPAR Holdback Amount plus the Closing Interest applicable thereto. Certain identified information marked with [***] has been excluded from this exhibit because it is not material and is of the type that the registrant treats as private and confidential.

Purchase Price Adjustments. If (a) The Purchase Price shall be: (i) increased by the Seller Post-Closing Adjustment Amount (if such amount is positive) or (ii) decreased by the Servicer -------------------------- adjusts downward the Post-Closing Adjustment Amount (if such amount of is negative). The Purchase Price shall also be increased by any Principal Receivable sold amount paid to the Purchaser Sellers pursuant to this Agreement because of Section 3.4. (b) Within 90 days following the Closing Date, Purchasers shall prepare and deliver to Sellers a rebatestatement setting forth the Post-Closing Adjustment Amount (the “Post-Closing Adjustment Statement”), refund, unauthorized charge or billing error to an Obligor, or because and such Receivable was created in respect of goods or services which were refused, returned or not received by an Obligor, or if the Seller or the Servicer otherwise adjusts downward the amount of any such Principal Receivable without receiving Collections therefor or without charging off such amount as uncollectible, then, in any such case, the Purchase Price otherwise payable on the following Purchase Price Payment Date Post-Closing Adjustment Statement shall be reduced by the product also set forth Purchasers’ calculation of the Post-Closing Adjustment Factor for such Purchase Price Payment Date and the amount of such adjustmentAmount. Similarly, the Purchase Price otherwise payable on any Purchase Price Payment Date Sellers shall be reduced cooperate as reasonably requested by the product Purchasers in connection with Purchasers’ preparation of the Post-Closing Adjustment Factor for Statement. Sellers shall have a period (the “Review Period”) of 60 days from the delivery of the Post-Closing Adjustment Statement to Sellers in order to review such Purchase Price Payment Date Post-Closing Adjustment Statement and supporting documents. In connection therewith, from and after the amount of any Principal Receivable which was discovered during Closing Date, Purchasers shall provide Sellers with reasonable access to all records and work papers necessary to compute and verify the preceding Collection Period as having been created through a fraudulent or counterfeit charge or with respect to which the covenant contained in Section 5.1(b) was breachedPost- Closing Adjustment Statement. If, as a result of any adjustment or discovery described abovesuch review, Sellers disagree with the Post-Closing Adjustment Statement, Sellers shall deliver to Purchasers a written notice of disagreement (a “Dispute Notice”) prior to the expiration of the Review Period setting forth the basis for such dispute, the Purchaser is required amounts in dispute and, if practicable, Seller’s alternative calculation of the Post-Closing Adjustment Amount. The Post-Closing Adjustment Amount set forth on the Closing Adjustment Statement shall be final and binding: (i) If Sellers do not deliver a Dispute Notice to pay any amount Purchasers prior to the Servicer for deposit into the Excess Funding Account pursuant to Section 3.8(a) expiration of the Restated AgreementReview Period (or they deliver a written notice accepting the Post-Closing Adjustment Statement). (ii) If Sellers deliver a Dispute Notice to Purchasers in a timely manner, the Seller then Sellers and Purchasers shall pay attempt in good faith to resolve such amount to the Purchaser, in immediately available funds, not later than 2:00 P.M. (New York City time) on the second Business Day following dispute within 30 days from the date of such adjustment Dispute Notice. If Sellers and Purchasers cannot reach agreement within such 30-day period (or discovery such longer period as they may mutually agree), then Sellers or Purchasers may elect to refer such dispute to a nationally or regionally recognized certified public accounting firm as may be jointly selected by Purchasers and Sellers (the “Neutral Accountant”). The parties agree to cooperate with one another in the engagement of the Neutral Accountant for such amount purposes. Each party shall be paid by the Purchaser thereupon furnish to the Seller on the following Purchase Price Payment Date. If the Purchase Price Adjustment for any Purchase Price Payment Date would cause the Purchase Price for Neutral Accountant such Purchase Price Payment Date to be a negative number, the Seller shall pay reasonable work papers and other documents and information relating to the Purchaser on such Purchase Price Payment Date an amount equal calculation of the Post-Closing Adjustment Statement as that party may desire or as the Neutral Accountant may request, and each party will be afforded the opportunity to present information to the amount by which such Purchase Price Neutral Accountant and to discuss the determination of the Post-Closing Adjustment exceeds such Purchase Price (calculated before giving effect to such Purchase Price Adjustment)Statement with the Neutral Accountant.