Common use of Adjusted Purchase Price Clause in Contracts

Adjusted Purchase Price. The Purchase Price shall be adjusted to reflect the following: (a) Any variance in excess of $1,000,000 between the Historical Statutory Surplus as of September 30, 1999 and the Final Statutory Surplus, as provided in Section 2.10; (b) Any Net Realized Loss Balance in respect of the disposition of those securities (the "Securities") owned by the Insurance Subsidiaries and listed on Exhibit D attached hereto (the "Asset List"), as provided in Section 2.11; and (c) Any and all losses, costs, damages or expenses (including reasonable and documented attorneys', accountants', consultants' and experts' fees and expenses) suffered or incurred by Purchaser or any of its Affiliates (including, without limitation, officers, directors, employees or agents of Purchaser or such Affiliate) (each, a "Purchaser Indemnified Party") based upon, resulting from or arising out of (i) any inaccuracy in or breach of any representation or warranty of Seller contained herein, or (ii) the breach on the part of Seller of any unwaived covenant or agreement set forth in this Agreement which survives the Closing ("Losses"), as provided in Section 2.12; and provided, however, that, notwithstanding anything to the contrary contained herein, (x) no adjustment shall be made under Section 2.9(b) to the extent any such disposition of Securities is reflected in the Final Statutory Surplus, (y) no adjustment shall be made under Section 2.9(c) to the extent that any Losses resulting from or arising out of any such inaccuracy or breach is reflected in the Final Statutory Surplus, and (z) Losses shall be calculated net of any insurance proceeds received by any Purchaser Indemnified Party pursuant to any insurance policy owned by the Insurance Subsidiaries on or prior to Closing; and provided, further, that no adjustment pursuant to Section 2.9(a) or 2.9(c) shall be made in respect of (A) Taxes, or any inaccuracy or breach of any representation or warranty made in Section 3.9, in each case in respect of any taxable year ending after December 31, 1998, unless and to the extent that, but for this proviso, the adjustment in respect thereof would exceed $15,000,000; or (B) litigation, suits, proceedings, causes of action or other claims against or affecting either of the Insurance Subsidiaries (including legal fees and expenses incurred by the Insurance Companies in connection therewith) against the Insurance Subsidiaries, or any inaccuracy or breach of Section 3.8, unless and to the extent that, but for this proviso, the adjustment in respect thereof would exceed $5,000,000, and, in each such case, any such adjustment shall be for the excess over $15,000,000 or $5,000,000, as applicable.

Adjusted Purchase Price. The net price which the Purchaser shall pay for the Assets (the “Adjusted Purchase Price”) shall be: (1) The Purchase Price shall be adjusted to reflect the following: (a) Any variance in excess of $1,000,000 between the Historical Statutory Surplus as of September 30, 1999 and the Final Statutory Surplus, as provided set forth in Section 2.102.1(a) above; (b2) Any Net Realized Loss Balance Plus the amount of all direct expenditures and costs (capital and expensed) chargeable to the Assets under any applicable operating or unit agreement and incurred and paid by or on behalf of Seller in respect the ordinary course of owning and operating the Assets and attributable to the period from the Effective Time to the Closing Date, including, but not limited to, those expenditures and costs set forth in Section 13.17(a); (3) Plus an amount equal to all prepaid expenses that are actually paid by or on behalf of Seller prior to the Closing Date in the ordinary course of owning and operating the Assets as heretofore owned and operated and attributable to the Assets and allocable to any period after the Effective Time; (4) Plus an amount equal to the value of Seller’s interest in all merchantable oil in the tanks on the Effective Time attributable to the Assets net of all applicable taxes and royalties paid by Seller; (5) Less the amount of gross proceeds received by or credited to Seller that are attributable to the sale of any hydrocarbon production from the Assets for any period of time after the Effective Time net of all applicable taxes and royalties paid by Seller; (6) Less the amount of all expenditures and costs relating to the Assets, such as unpaid ad valorem, property, production, severance, and similar taxes and assessments (but not including income, franchise, or similar taxes) based upon or measured by the ownership of the disposition Assets, or the production of those securities hydrocarbons or the receipt of proceeds therefrom, which are payable or which accrued to the Assets prior to the Effective Time and that are unpaid as of the Closing Date; (7) Less the "Securities") owned by allocated value for any of the Insurance Subsidiaries and listed on Exhibit D attached hereto Subject Properties deleted from this transaction pursuant to this Agreement; (the "Asset List"8) Plus or less, as applicable, any amounts determined to be subject to a Purchase Price Adjustment provided for in Sections 2.4 (Deposit), as provided in Section 2.113.5 (Title Defects), 3.7 (Environmental Defects), 3.10 (Preferential Purchase Rights), and 12.3 (Casualty Loss) herein; and (c9) Any and all losses, costs, damages As adjusted up or expenses (including reasonable and documented attorneys', accountants', consultants' and experts' fees and expenses) suffered or incurred by Purchaser or any of its Affiliates (including, without limitation, officers, directors, employees or agents of Purchaser or such Affiliate) (each, a "Purchaser Indemnified Party") based upon, resulting from or arising out of (i) any inaccuracy in or breach of any representation or warranty of Seller contained herein, or (ii) the breach on the part of Seller of any unwaived covenant or agreement set forth in this Agreement which survives the Closing ("Losses"), as provided in Section 2.12; and provided, however, that, notwithstanding anything to the contrary contained herein, (x) no adjustment shall be made under Section 2.9(b) to the extent any such disposition of Securities is reflected in the Final Statutory Surplus, (y) no adjustment shall be made under Section 2.9(c) to the extent that any Losses resulting from or arising out of any such inaccuracy or breach is reflected in the Final Statutory Surplus, and (z) Losses shall be calculated net of any insurance proceeds received by any Purchaser Indemnified Party pursuant to any insurance policy owned by the Insurance Subsidiaries on or prior to Closing; and provided, further, that no adjustment down pursuant to Section 2.9(a) or 2.9(c) shall be made in respect of (A) Taxes, or any inaccuracy or breach of any representation or warranty made in Section 3.9, in each case in respect of any taxable year ending after December 31, 1998, unless and to the extent that, but for this proviso, the adjustment in respect thereof would exceed $15,000,000; or (B) litigation, suits, proceedings, causes of action or other claims against or affecting either of the Insurance Subsidiaries (including legal fees and expenses incurred by the Insurance Companies in connection therewith) against the Insurance Subsidiaries, or any inaccuracy or breach of Section 3.8, unless and to the extent that, but for this proviso, the adjustment in respect thereof would exceed $5,000,000, and, in each such case, any such adjustment shall be for the excess over $15,000,000 or $5,000,000, as applicable13.17(a).

Adjusted Purchase Price. The Purchase Price shall Following the Closing, the Parties will determine the actual fair market value of the Inventory and face amount of the Accounts Receivable. If the Parties are unable to agree on the actual fair market value of the Inventory and face amount of the Accounts Receivable within 30 days after the Closing, Buyer and Parent will select Neutral Accountants to resolve any disputed matters, the costs of which will be adjusted shared equally by Buyer and Parent. Buyer and Parent will jointly instruct the Neutral Accountants to reflect resolve any disputed matters regarding the following: (a) Any variance in excess actual fair market value of $1,000,000 between the Historical Statutory Surplus as Inventory or the face amount of September 30the Accounts Receivable within 15 days after referral of the matter to them, 1999 and the Final Statutory Surplus, as provided in Section 2.10; (b) Any Net Realized Loss Balance in respect decision of the disposition of those securities (Neutral Accountants will be conclusive and binding upon Buyer and Parent, absent fraud or manifest error. If the "Securities") owned by the Insurance Subsidiaries and listed on Exhibit D attached hereto (the "Asset List"), as provided in Section 2.11; and (c) Any and all losses, costs, damages or expenses (including reasonable and documented attorneys', accountants', consultants' and experts' fees and expenses) suffered or incurred by Purchaser or any of its Affiliates (including, without limitation, officers, directors, employees or agents of Purchaser or such Affiliate) (each, a "Purchaser Indemnified Party") based upon, resulting from or arising out sum of (i) any inaccuracy in or breach the fair market value of any representation or warranty of Seller contained hereinthe Inventory, or plus (ii) the breach on face amount of the part of Seller of any unwaived covenant or agreement set forth in this Agreement which survives the Closing ("Losses"), as provided in Section 2.12; and provided, however, that, notwithstanding anything to the contrary contained herein, (x) no adjustment shall be made under Section 2.9(b) to the extent any such disposition of Securities is reflected in the Final Statutory Surplus, (y) no adjustment shall be made under Section 2.9(c) to the extent that any Losses resulting from or arising out of any such inaccuracy or breach is reflected in the Final Statutory Surplus, and (z) Losses shall be calculated net of any insurance proceeds received by any Purchaser Indemnified Party pursuant to any insurance policy owned by the Insurance Subsidiaries on or prior to Closing; and provided, further, that no adjustment pursuant to Section 2.9(a) or 2.9(c) shall be made in respect of (A) Taxes, or any inaccuracy or breach of any representation or warranty made in Section 3.9Accounts Receivable, in each case as determined in respect accordance with this Section 7.01, less (iii) the amount of any taxable year ending after December 31, 1998, unless and the reserve applicable to the extent that, but for this provisoAccounts Receivable reflected in the Balance Sheet (the "FMV of Acquired Assets") exceeds the Purchase Price, the adjustment in respect thereof would exceed $15,000,000; or amount of such excess (Bthe "Positive Adjustment Amount") litigation, suits, proceedings, causes of action or other claims against or affecting either of the Insurance Subsidiaries (including legal fees and expenses incurred by the Insurance Companies in connection therewith) against the Insurance Subsidiaries, or any inaccuracy or breach of Section 3.8, unless and will be added to the extent that, but for this provisoPurchase Price in determining the Adjusted Purchase Price. If the Purchase Price exceeds the FMV of Acquired Assets, the adjustment amount of such excess (the "Negative Adjustment Amount") will be subtracted from the Purchase Price in respect thereof would exceed $5,000,000, and, in each such case, any such adjustment shall be for determining the excess over $15,000,000 or $5,000,000, as applicableAdjusted Purchase Price.

Adjusted Purchase Price. The net price which the Purchaser shall pay for the Assets (the "Adjusted Purchase Price") shall be: (1) The Purchase Price shall be adjusted to reflect the following: (a) Any variance in excess of $1,000,000 between the Historical Statutory Surplus as of September 30, 1999 and the Final Statutory Surplus, as provided set forth in Section 2.102.1(a) above; (b2) Any Net Realized Loss Balance Plus the amount of all direct expenditures and costs (capital and expensed) chargeable to the Assets under any applicable operating or unit agreement and incurred and paid by or on behalf of Seller in respect the ordinary course of owning and/or operating the Assets and attributable to the period from the Effective Time to the Closing Date, including but not limited to, those expenditures and costs set forth in Section 13.17(a) or allowed under Section 5A.3(a) or otherwise incurred or paid not in breach of this Agreement; (3) Plus an amount equal to all prepaid expenses that are actually paid by or on behalf of Seller prior to the Closing Date in the ordinary course of owning and/or operating the Assets as heretofore owned and/or operated and attributable to the Assets and allocable to any period after the Effective Time; (4) Plus an amount equal to the value of Seller's interest in all merchantable oil in the tanks on the Effective Time attributable to the Assets net of all applicable taxes and royalties paid by or on behalf of Seller; (5) Less the amount of gross proceeds received by or credited to Seller that are attributable to the sale of any hydrocarbon production from the Assets for any period of time after the Effective Time net of all applicable production related taxes and royalties paid by or on behalf of Seller; (6) Less the amount of all expenditures and costs relating to the Assets, such as unpaid ad valorem, property, production, severance, and similar taxes and assessments (but not including income, franchise, or similar taxes) based upon or measured by the ownership of the disposition Assets, or the production of those securities hydrocarbons or the receipt of proceeds therefrom, which are payable or which accrued to the Assets prior to the Effective Time and that are unpaid as of the Closing Date; (7) Less the "Securities") owned by allocated value for any of the Insurance Subsidiaries and listed on Exhibit D attached hereto Assets removed from this transaction pursuant to this Agreement; (the "Asset List"8) Plus or less, as applicable, any amounts determined to be subject to a Purchase Price Adjustment provided for in Sections 2.4 (Deposit), as provided in and 3.10 (preferential purchase rights) herein; (9) As adjusted up or down pursuant to Section 2.11; 13.17 but only to the extent not duplicated elsewhere herein, and (c10) Any and all losses, costs, damages or expenses (including reasonable and documented attorneys', accountants', consultants' and experts' fees and expenses) suffered or incurred by Purchaser or any of its Affiliates (including, without limitation, officers, directors, employees or agents of Purchaser or such Affiliate) (each, a "Purchaser Indemnified Party") based upon, resulting from or arising out of (i) any inaccuracy in or breach of any representation or warranty of Seller contained herein, or (ii) Plus an amount equal to the breach interest on the part of Seller of any unwaived covenant or agreement set forth in this Agreement which survives Purchase Price at the Closing ("Losses"), as provided in Section 2.12; and provided, however, that, notwithstanding anything to the contrary contained herein, (x) no adjustment shall be made under Section 2.9(b) to the extent any such disposition of Securities is reflected in the Final Statutory Surplus, (y) no adjustment shall be made under Section 2.9(c) to the extent that any Losses resulting from or arising out of any such inaccuracy or breach is reflected in the Final Statutory Surplus, and (z) Losses shall be calculated net of any insurance proceeds received by any Purchaser Indemnified Party pursuant to any insurance policy owned by the Insurance Subsidiaries on or prior to Closing; and provided, further, that no adjustment pursuant to Section 2.9(a) or 2.9(c) shall be made in respect of (A) Taxes, or any inaccuracy or breach of any representation or warranty made in Section 3.9, in each case in respect of any taxable year ending after December 31, 1998, unless and to the extent that, but for this proviso, the adjustment in respect thereof would exceed $15,000,000; or (B) litigation, suits, proceedings, causes of action or other claims against or affecting either rate of the Insurance Subsidiaries 90 day LIBOR (including legal fees and expenses incurred by which is quoted as an annualized rate) plus one hundred (100) basis points from March 1, 2006 through the Insurance Companies in connection therewith) against the Insurance Subsidiaries, or any inaccuracy or breach day of Section 3.8, unless and to the extent that, but for this proviso, the adjustment in respect thereof would exceed $5,000,000, and, in each such case, any such adjustment shall be for the excess over $15,000,000 or $5,000,000, as applicableClosing.

Adjusted Purchase Price. The Adjusted Purchase Price shall be adjusted equal to reflect (all amounts determined as at the following:Closing Time): (a) Any variance in excess of $1,000,000 between the Historical Statutory Surplus as of September 30, 1999 and the Final Statutory Surplus, as provided in Section 2.10;CDN$33,000,000; plus (b) Any Net Realized Loss Balance in respect the Corporations’ Cash; less (c) the sum of the disposition following amounts: (i) the amount by which the Corporations’ Current Liabilities (excluding any portion of those securities Debt, I/O Option Cost, Transaction Costs and Option Costs) exceeds the Corporations’ Current Assets (excluding Cash); (ii) the "Securities"amount of the I/O Option Cost; (iii) owned by the Insurance Subsidiaries and listed on Exhibit D attached hereto amount of the Corporation’s Debt; (iv) the "Asset List"), as provided in Section 2.11amount of the Transaction Costs; and (c) Any and all losses, costs, damages or expenses (including reasonable and documented attorneys', accountants', consultants' and experts' fees and expenses) suffered or incurred by Purchaser or any of its Affiliates (including, without limitation, officers, directors, employees or agents of Purchaser or such Affiliate) (each, a "Purchaser Indemnified Party") based upon, resulting from or arising out of (i) any inaccuracy in or breach of any representation or warranty of Seller contained herein, or (iiv) the breach amount of the Option Costs. No earlier than five business days and no later than two business days prior to the Closing Date, the Sellers shall provide to the Buyer a statement setting out a good faith estimate of this calculation (the “Adjusted Purchase Price Notice”) which shall specify the Adjusted Purchase Price payable at Closing, subject to adjustment on the part of Seller of any unwaived covenant or agreement set forth basis described in Section 2.4 below. Attached to this Agreement is Schedule 2.3 which survives illustrates the calculation of the Adjusted Purchase Price based on Cash, Current Assets, Current Liabilities, Debt as shown in Trace’s consolidated balance sheet at June 30, 2005 and other estimated amounts. Schedule 2.3 is included to assist the Sellers in preparing the Adjusted Purchase Price Notice and the parties in completing any adjustments pursuant to Section 2.4. The difference between CDN$33,000,000 and the Adjusted Purchase Price shall be applied at the Closing Time by the Buyer ("Losses"or by Trace, upon payment of the required funds to Trace by the Buyer), as provided in Section 2.12; the following order of priority, to pay the full amount of the Transaction Costs, the Option Costs, the I/O Option Cost, and providedto reduce the Debt (in the case of the Debt, however, that, notwithstanding anything to the contrary contained herein, (x) no adjustment shall be made under Section 2.9(b) to the extent any such disposition of Securities is reflected in the Final Statutory Surplus, (y) no adjustment shall be made under Section 2.9(c) to the extent that any Losses resulting from or arising out of any such inaccuracy or breach is reflected in the Final Statutory Surplus, and (z) Losses shall be calculated net of any insurance proceeds received by any Purchaser Indemnified Party pursuant to any insurance policy owned by the Insurance Subsidiaries on or prior to Closing; and provided, further, that no adjustment pursuant to Section 2.9(a) or 2.9(c) shall be made in respect of (A) Taxes, or any inaccuracy or breach of any representation or warranty made in Section 3.9, in each case in respect of any taxable year ending after December 31, 1998, unless and to the extent that, but for this proviso, the adjustment in respect thereof would exceed $15,000,000; or (B) litigation, suits, proceedings, causes of action or other claims against or affecting either of the Insurance Subsidiaries (including legal fees and expenses incurred by the Insurance Companies in connection therewith) against the Insurance Subsidiaries, or any inaccuracy or breach of Section 3.8, unless and to the extent that, but for this proviso, the adjustment in respect thereof would exceed $5,000,000, and, in each such case, any such adjustment shall be for the excess over $15,000,000 or $5,000,000, as applicablefunds remain).