SUCH STATUTE AS AMENDED FROM TIME TO
TIME AND INCLUDES ANY SUCCESSOR LEGISLATION THERETO AND ANY REGULATIONS
PROMULGATED THEREUNDER.
THE SCHEDULES AND EXHIBITS REFERRED TO HEREIN SHALL BE
CONSTRUED WITH AND AS AN INTEGRAL PART OF THIS AGREEMENT TO THE SAME EXTENT AS
IF THEY WERE SET FORTH VERBATIM HEREIN.
TITLES TO ARTICLES AND HEADINGS OF
SECTIONS ARE INSERTED FOR CONVENIENCE OF REFERENCE ONLY AND SHALL NOT BE DEEMED
A PART OF OR TO AFFECT THE MEANING OR INTERPRETATION OF THIS AGREEMENT.
ARTICLE II
CONTRIBUTION, PURCHASE AND SALE; PURCHASE PRICE
SECTION 2.1
CONTRIBUTION.
IMMEDIATELY PRIOR
TO THE CLOSING, SELLER SHALL (A) CONTRIBUTE, TRANSFER, CONVEY, ASSIGN AND
DELIVER TO THE COMPANY, ON A GOING CONCERN BASIS, ALL OF SELLER'S RIGHT, TITLE
AND INTEREST IN, TO AND UNDER ALL OF THE ASSETS, RIGHTS AND PROPERTIES OF SELLER
OF EVERY KIND, CHARACTER AND DESCRIPTION, WHETHER TANGIBLE OR INTANGIBLE,
WHETHER REAL, PERSONAL OR MIXED, WHETHER ACCRUED OR CONTINGENT, AND WHEREVER
LOCATED, WHICH ARE OWNED OR HELD AS OF THE DATE THEREOF BY SELLER, INCLUDING THE
EQUITY INTERESTS IN THE SUBSIDIARIES BUT EXCLUDING THE UNIT AND THE RETAINED
ASSETS (COLLECTIVELY, THE "CONTRIBUTED ASSETS"), AND (B) TRANSFER AND ASSIGN,
AND CAUSE THE COMPANY TO ASSUME AND AGREE TO PAY, PERFORM AND FULLY DISCHARGE
WHEN DUE, ALL LIABILITIES OF SELLER OTHER THAN THE RETAINED LIABILITIES
(COLLECTIVELY, THE "ASSUMED LIABILITIES") PURSUANT TO THE TERMS OF THE
CONTRIBUTION AGREEMENT.
SECTION 2.2
PURCHASE AND SALE OF THE UNIT.
UPON THE TERMS AND SUBJECT TO THE CONDITIONS OF THIS AGREEMENT, ON THE CLOSING
DATE, SELLER SHALL SELL, TRANSFER, ASSIGN, CONVEY AND DELIVER TO BUYER, AND
BUYER SHALL PURCHASE AND ACCEPT FROM SELLER, THE UNIT, FREE AND CLEAR OF ALL
ENCUMBRANCES.
16
SECTION 2.3
CLOSING DATE PAYMENTS; PURCHASE
PRICE.
(A)
THE AMOUNT PAYABLE BY BUYER ON THE CLOSING DATE FOR THE UNIT (THE
"CLOSING DATE PAYMENT AMOUNT") SHALL BE EQUAL TO:
(I)
TWO HUNDRED AND SEVENTY FIVE MILLION
DOLLARS ($275,000,000) IN CASH (THE "PURCHASE PRICE");
(II)
PLUS AN AMOUNT EQUAL TO THE ESTIMATED
AMOUNT OF CASH AS OF THE CLOSING (AS DETERMINED PURSUANT TO SECTION 2.4(A)) (THE
"ESTIMATED CLOSING DATE CASH");
(III)
AS APPLICABLE, (A) PLUS THE AMOUNT BY WHICH
ESTIMATED CLOSING DATE WORKING CAPITAL IS GREATER THAN ($22,500,000), OR
(B) MINUS THE AMOUNT BY WHICH ESTIMATED CLOSING DATE WORKING CAPITAL IS LESS
THAN ($27,500,000);
(IV)
MINUS, THE AMOUNT, IF ANY, BY WHICH THE
ESTIMATED AMOUNT OF DEFERRED REVENUE AS OF THE CLOSING ("ESTIMATED DEFERRED
REVENUE") EXCEEDS THE TARGET DEFERRED REVENUE AMOUNT;
(V)
MINUS AN AMOUNT EQUAL TO THE ESTIMATED
TRANSACTION COSTS (TO THE EXTENT NOT PAID PRIOR TO CLOSING OR INCLUDED IN THE
CALCULATION OF ESTIMATED CLOSING DATE WORKING CAPITAL) (THE "ESTIMATED
TRANSACTION COSTS");
(VI)
MINUS THE ESCROW FUND; AND
(VII)
PLUS THE SWAP TERMINATION COSTS.
(B)
BUYER SHALL PAY THE CLOSING DATE PAYMENT
AMOUNT TO SELLER AT CLOSING IN ACCORDANCE WITH SECTION 3.2.
SECTION 2.4
PURCHASE PRICE ADJUSTMENTS.
THE
PURCHASE PRICE IS TO BE ADJUSTED PURSUANT TO THE PROCEDURES SET FORTH IN
SECTION 2.3 AND THIS SECTION 2.4 (THE