MEAN "INCLUDING WITHOUT LIMITATION", (E) ALL REFERENCES IN THIS
AGREEMENT TO ARTICLES, SECTIONS, SCHEDULES AND EXHIBITS SHALL MEAN AND REFER TO
ARTICLES, SECTIONS, SCHEDULES AND EXHIBITS OF THIS AGREEMENT, (F) ALL REFERENCES
TO STATUTES AND RELATED REGULATIONS SHALL INCLUDE ALL AMENDMENTS OF THE SAME AND
ANY SUCCESSOR OR REPLACEMENT STATUTES AND REGULATIONS, (G) REFERENCES TO ANY
PERSON SHALL BE DEEMED TO MEAN AND INCLUDE THE SUCCESSORS AND PERMITTED ASSIGNS
OF SUCH PERSON (OR, IN THE CASE OF A GOVERNMENTAL AUTHORITY, PERSONS SUCCEEDING
TO THE RELEVANT FUNCTIONS OF SUCH PERSON), AND (H) REFERENCES TO ANY AGREEMENT
SHALL INCLUDE A REFERENCE TO ALL SCHEDULES, EXHIBITS AND OTHER ATTACHMENTS
THERETO AS SUCH AGREEMENT AND SCHEDULES, EXHIBITS, AND OTHER ATTACHMENTS MAY BE
AMENDED OR SUPPLEMENTED FROM TIME TO TIME.
1.03
KNOWLEDGE.
AS USED HEREIN THE TERMS "KNOWLEDGE" OR "BEST
KNOWLEDGE" SHALL HAVE THE SAME MEANING AND SHALL MEAN THE ACTUAL KNOWLEDGE OF
GARY STEPHENSON, MANDY GOUBEAUX, RANDALL GRIFFIN AND CHRIS HERGENRATHER AS IT
RELATES TO SELLER AND TIM LIGHT, TOBY THOMAS AND CYNTHIA BUTLER CARSON AS IT
RELATES TO PURCHASER, IN EACH INSTANCE AFTER DUE INQUIRY AND REASONABLE
INVESTIGATION.
11
ARTICLE II
PURCHASE AND SALE, PURCHASE PRICE,
ALLOCATION AND OTHER RELATED MATTERS
2.01
PURCHASE AND SALE.
UPON THE TERMS AND SUBJECT TO THE CONDITIONS OF
THIS AGREEMENT, AT THE CLOSING THE SELLER SHALL SELL, ASSIGN, CONVEY, TRANSFER
AND DELIVER TO PURCHASER OR ITS DESIGNEES AND PURCHASER OR SUCH DESIGNEES SHALL
ACQUIRE FROM SELLER THE PURCHASED ASSETS.
2.02
PURCHASE PRICE.
THE AGGREGATE PURCHASE PRICE (THE "PURCHASE
PRICE") PAYABLE BY PURCHASER FOR THE PURCHASED ASSETS SHALL BE ONE HUNDRED TWO
MILLION DOLLARS ($102,000,000), LESS THE AMOUNT OF ANY INSURANCE PROCEEDS
RECEIVED BY SELLER OR ANY OF ITS AFFILIATES WHETHER DIRECTLY OR AS A BENEFICIARY
AFTER THE DATE HEREOF AND BEFORE THE EFFECTIVE TIME RELATING TO ANY INSURED LOSS
OF THE PURCHASED ASSETS INCURRED BEFORE THE EFFECTIVE TIME, AFTER REDUCING SUCH
PROCEEDS BY ANY COSTS INCURRED BY SELLER OR ANY OF ITS AFFILIATES BEFORE THE
EFFECTIVE TIME IN THE INVESTIGATION OR REPAIR OF DAMAGE FROM ANY SUCH LOSS.
2.03
ASSUMED LIABILITIES.
(A)
AS ADDITIONAL CONSIDERATION FOR THE PURCHASE OF THE PURCHASED
ASSETS, PURCHASER HEREBY AGREES TO ASSUME ON THE CLOSING DATE BUT AS OF THE
EFFECTIVE TIME AND DISCHARGE IN ACCORDANCE WITH THEIR TERMS OR AS OTHERWISE
PROVIDED BY THIS AGREEMENT ONLY THOSE OBLIGATIONS OF SELLER RELATED TO THE
PURCHASED ASSETS (INCLUDING THE PURCHASED CONTRACTS) ARISING AND ATTRIBUTABLE TO
THE PERIOD AFTER THE EFFECTIVE TIME, OTHER THAN THOSE OBLIGATIONS ARISING OUT OF
OR ATTRIBUTABLE TO ANY BREACH OR OTHER VIOLATION IN CONNECTION THEREWITH BY
SELLER OR INCURRED AS A RESULT OF AN ACT OR OMISSION OF SELLER IN CONTRAVENTION
OF THE PROVISIONS OF THIS AGREEMENT.
ASSUMED LIABILITIES ARE LIMITED TO THE
ITEMS EXPRESSLY DESCRIBED IN THIS SECTION 2.03.
THE FOREGOING PROVISIONS OF
THIS SECTION 2.03 NOTWITHSTANDING, PURCHASER SHALL NOT BE OBLIGATED TO ASSUME
ANY LIABILITY OR OBLIGATION AS TO WHICH SELLER, ITS AFFILIATE, OR THE
COUNTERPARTY IS IN DEFAULT IN ANY MATERIAL RESPECT ON THE CLOSING