Common use of Downward Adjustment Clause in Contracts

Downward Adjustment. If, following determination of the Final Consideration in accordance with this Section 2.05, there is a Downward Adjustment Amount, the Acquiror and the Sellers’ Representative shall deliver joint written instructions to the Escrow Agent, within three (3) Business Days from the date on which the Final Consideration is finally determined pursuant to this Section 2.05, instructing the Escrow Agent to pay to the Acquiror, from the Adjustment Escrow Account, an amount equal to the Downward Adjustment Amount (if the Downward Adjustment Amount is less than the Adjustment Escrow Amount) or the Adjustment Escrow Amount (if the Downward Adjustment Amount is equal to or greater than the Adjustment Escrow Amount), by wire transfer of immediately available funds to an account or accounts designated by the Acquiror. If the Adjustment Escrow Amount is insufficient to satisfy the Downward Adjustment Amount in full, the Acquiror and the Sellers’ Representative shall deliver joint written instructions to the Escrow Agent, within three (3) Business Days from the date on which the Final Consideration is finally determined pursuant to this Section 2.05, instructing the Escrow Agent to pay to the Acquiror an amount equal to the excess of the Downward Adjustment Amount over the Adjustment Escrow Amount from the Indemnity Escrow Amount by wire transfer of immediately available funds to an account or accounts designated by the Acquiror. After the Downward Adjustment Amount is fully paid to the Acquiror in accordance to this Section 2.05(g), the Acquiror and the Sellers’ Representative shall deliver joint written instructions to the Escrow Agent, instructing the Escrow Agent to release the balance of the funds remaining in the Adjustment Escrow Account, if any, to the Sellers’ Representative (for the benefit of Sellers) within one (1) Business Day from the date on which the Downward Adjustment Amount is paid to the Acquiror in accordance with this Section 2.05(g), by wire transfer of immediately available funds to an account or accounts designated by the Sellers’ Representative.

Downward Adjustment. If, following determination of If the Final Consideration in accordance with this Section 2.05, there is a Downward Adjustment Amount, the Acquiror and the Sellers’ Representative shall deliver joint written instructions to the Escrow Agent, within three Net Working Capital (3) Business Days from the date on which the Final Consideration is as finally determined pursuant to this Section 2.051.4(b)) is less than the Target Net Working Capital, instructing then the Purchase Price will be adjusted such that the net effect to the Purchase Price is a decrease in an amount equal to the shortfall between the Final Net Working Capital and the Target Net Working Capital (the “Downward Adjustment Amount”) and the Escrow Agent to shall, in accordance with the Escrow Agreement, pay to the Acquiror, from the Adjustment Escrow Account, an amount equal to the Downward Adjustment Amount (if from the Escrow Account to the Buyer. To the extent there is sufficient cash in the Escrow Account, the Escrow Agent shall pay the Downward Adjustment Amount is less than the Adjustment Escrow Amount) or the Adjustment Escrow Amount (if the Downward Adjustment Amount is equal to or greater than the Adjustment Escrow Amount), in cash by wire transfer of immediately available funds to an account or accounts designated in writing by the AcquirorBuyer. If To the Adjustment Escrow Amount is insufficient to satisfy extent the Downward Adjustment Amount exceeds the amount of cash in full, the Acquiror and the Sellers’ Representative shall deliver joint written instructions to the Escrow AgentAccount (the “Downward Adjustment Available Cash”), within three (3i) Business Days from the date on which the Final Consideration is finally determined pursuant to this Section 2.05, instructing the Escrow Agent to shall pay to the Acquiror an amount equal to the excess of the Downward Adjustment Amount over the Adjustment Escrow Amount from the Indemnity Escrow Amount Available Cash in cash by wire transfer of immediately available funds to an account or accounts designated in writing by the Acquiror. After Buyer and (ii) at Buyer’s option either (A) the Escrow Agent shall pay the excess of the Downward Adjustment Amount is fully paid over the Downward Adjustment Available Cash in Buyer Shares having a value equal to such excess based on the Acquiror Buyer Measuring Price as of the payment date or in accordance Escrow Units having a value equal to this Section 2.05(g)such excess based on the Common Unit Price, or (B) such excess may be offset against the Acquiror outstanding principal due under the Note. If Buyer elects the option under sub-clause (A) of the immediately preceding sentence and the Sellers’ Representative shall deliver joint written instructions to combination of cash and Buyer Shares or Escrow Units, as applicable, in the Escrow Agent, instructing Account is insufficient for the Escrow Agent to release pay the balance of entire Downward Adjustment Amount from the funds remaining in the Adjustment Escrow Account, if anythe shortfall of the Downward Adjustment Amount that was not paid out of the Escrow Account, up to the Purchase Price less the portion of the Downward Adjustment Amount that was paid out of the Escrow Account, shall be paid in cash by the Sellers, on a pro rata basis according to their respective Pro Rata Shares, by bank wire transfer of immediately available funds, to an account designated in writing by the Sellers’ Representative (for Buyer, or, at the benefit option of Sellers) the Buyer, such shortfall may be offset against the outstanding principal due under the Note. Such payments shall be made to the Buyer within one (1) five Business Day Days from the date on which the Downward Adjustment Amount Final Net Working Capital is paid finally determined pursuant to the Acquiror in accordance with this Section 2.05(g1.4(b), by wire transfer of immediately available funds to an account or accounts designated by the Sellers’ Representative.

Downward Adjustment. IfIf the Net Adjustment Amount is negative, following determination then the Merger Consideration will be adjusted downward by the amount of the Final Consideration in accordance with this Section 2.05, there is a absolute value of such Net Adjustment Amount (the “Downward Adjustment Amount”), the Acquiror and the Sellers’ Seller Representative and the Buyer Representative shall deliver joint written instructions to the Escrow Agent, promptly (but in any event within three (3) Business Days from the date on which the Final Consideration Net Adjustment Amount is finally determined pursuant to this Section 2.05, instructing 2.9(b)) deliver a joint written instruction to the Escrow Agent directing the Escrow Agent to pay release (i) to the Acquiror, from the Adjustment Escrow Account, Buyer Representative an amount equal to the Downward Adjustment Amount (if from the Downward Adjustment Amount is less than the Adjustment Escrow Amount) or the Purchase Price Adjustment Escrow Amount held in the Escrow Account to the account(s) designated in writing by the Buyer Representative to the Seller Representative and the Escrow Agent and (if ii) to the Downward Adjustment Amount is Designated Account an amount equal to or greater than the Adjustment Escrow Amount), by wire transfer balance of immediately available funds to an account or accounts designated by the Acquiror. If the Purchase Price Adjustment Escrow Amount is insufficient from the Escrow Account and Seller Representative shall thereafter distribute such amount to satisfy the Downward Adjustment Amount Sellers in full, accordance with the Acquiror Merger Consideration Letter and provide evidence thereof to the Buyer Representative in form and substance acceptable to the Buyer Representative); provided that if the Seller Representative and the Sellers’ Buyer Representative shall fail to timely deliver the joint written instructions instruction to the Escrow Agent, within three (3) Business Days from either the date on which Seller Representative or the Final Consideration is finally determined pursuant Buyer Representative shall have the right to this Section 2.05, instructing deliver to the Escrow Agent and the Buyer Representative or the Seller Representative, as applicable, collectively (i.e., the Buyer Representative or the Seller Representative, as applicable, and the Escrow Agent shall be recipients of a single written notice addressed to pay to both of them) the Acquiror an amount equal to arbitration award rendered by the excess Arbitration Firm in accordance with Section 2.9(b) setting forth the final determination of the Downward Net Adjustment Amount over and the amount of the Purchase Price Adjustment Escrow Amount from the Indemnity Escrow Amount by wire transfer of immediately available funds to an account or accounts designated by the Acquiror. After the Downward Adjustment Amount be disbursed and to whom such amount is fully paid to the Acquiror in accordance to this Section 2.05(g)be disbursed, the Acquiror and the Sellers’ Representative shall deliver joint written instructions to the Escrow Agent, instructing the Escrow Agent to release the balance shall disburse all or part of the funds remaining in the Purchase Price Adjustment Escrow Account, if any, to the Sellers’ Representative (for the benefit of Sellers) within one (1) Business Day from the date on which the Downward Adjustment Amount is paid to the Acquiror in accordance with this Section 2.05(g), by wire transfer of immediately available funds to an account or accounts designated by the Sellers’ Representativesuch arbitration award.

Downward Adjustment. If, following determination of the If (x) Final Consideration in accordance with Working Capital (as finally determined pursuant to this Section 2.051.6) plus any Indebtedness Deficiency Amount or minus any Indebtedness Excess Amount is less than (y) the Working Capital Estimate (as finally determined pursuant to this Section 1.6), there is a then the Purchase Price will be adjusted downward by the amount of such shortfall (the “Downward Adjustment Amount”), the Acquiror and the Sellers’ Representative (i) Buyer and Seller shall deliver a joint written instructions instruction to the Escrow AgentAgent directing the Escrow Agent to pay Buyer, by bank wire transfer of immediately available funds, to an account designated in writing by Buyer, an amount in cash equal to the Downward Adjustment Amount (together with any interest earned thereon) out of the Working Capital Escrow Amount and (ii) Buyer and Seller shall direct the Escrow Agent to pay to the Seller the remainder, if any, of the Working Capital Escrow Amount (together with any interest earned thereon); and if the Downward Adjustment Amount is greater than the Working Capital Escrow Amount, (A) Buyer and Seller shall direct the Escrow Agent to pay to Buyer the Working Capital Escrow Amount (together with any interest earned thereon) and (B) Seller shall pay to Buyer the difference between the Downward Adjustment Amount and the Working Capital Escrow Amount together with interest on such difference at a rate per annum equal to the “prime rate” as published in the Wall Street Journal on the Business Day immediately preceding the date of such payment. The Downward Adjustment Amount (including interest) shall be paid to Buyer within three five (35) Business Days from the date on which the Final Consideration Working Capital is finally determined pursuant to this Section 2.05, instructing the Escrow Agent to pay to the Acquiror, from the Adjustment Escrow Account, an amount equal to the Downward Adjustment Amount (if the Downward Adjustment Amount is less than the Adjustment Escrow Amount) or the Adjustment Escrow Amount (if the Downward Adjustment Amount is equal to or greater than the Adjustment Escrow Amount), by wire transfer of immediately available funds to an account or accounts designated by the Acquiror. If the Adjustment Escrow Amount is insufficient to satisfy the Downward Adjustment Amount in full, the Acquiror and the Sellers’ Representative shall deliver joint written instructions to the Escrow Agent, within three (3) Business Days from the date on which the Final Consideration is finally determined pursuant to this Section 2.05, instructing the Escrow Agent to pay to the Acquiror an amount equal to the excess of the Downward Adjustment Amount over the Adjustment Escrow Amount from the Indemnity Escrow Amount by wire transfer of immediately available funds to an account or accounts designated by the Acquiror. After the Downward Adjustment Amount is fully paid to the Acquiror in accordance to this Section 2.05(g), the Acquiror and the Sellers’ Representative shall deliver joint written instructions to the Escrow Agent, instructing the Escrow Agent to release the balance of the funds remaining in the Adjustment Escrow Account, if any, to the Sellers’ Representative (for the benefit of Sellers) within one (1) Business Day from the date on which the Downward Adjustment Amount is paid to the Acquiror in accordance with this Section 2.05(g), by wire transfer of immediately available funds to an account or accounts designated by the Sellers’ Representative1.6.