ANY LIABILITIES OR OBLIGATIONS ARISING UNDER ANY ENVIRONMENTAL
LAW WHERE THE UNDERLYING FACTS, EVENTS OR CONDITIONS EXISTED OR OCCURRED AT OR
PRIOR TO THE CLOSING, IRRESPECTIVE OF WHETHER SUCH LIABILITY OR OBLIGATION
ATTACHES TO THE PURCHASER OR SELLER IN THE FIRST INSTANCE;
(J)
ANY OF SELLER'S LIABILITIES OR OBLIGATIONS RELATING TO ANY LEGAL
ACTION, PROCEEDING OR CLAIM (OTHER THAN THOSE LISTED ON SCHEDULE 3.12) ARISING
OUT OF OR IN CONNECTION WITH SELLERS' CONDUCT OF THE BUSINESS AT OR BEFORE THE
CLOSING OR ANY OTHER CONDUCT OF THE SELLER, THE SELLER'S OFFICERS, DIRECTORS,
EMPLOYEES, CONSULTANTS, AGENTS OR ADVISORS AT OR PRIOR TO THE CLOSING;
(K)
ANY LIABILITIES OR OBLIGATIONS IN RESPECT OF ANY OF THE EXCLUDED
ASSETS (INCLUDING UNDER ANY CONTRACTS, LEASES, COMMITMENTS OR UNDERSTANDINGS
RELATED THERETO);
(L)
ANY OF SELLERS' LIABILITIES OR OBLIGATIONS WHICH PURCHASER MAY
BECOME LIABLE FOR SOLELY AS A RESULT OF OR IN CONNECTION WITH THE FAILURE BY
PURCHASER OR SELLER TO COMPLY WITH ANY BULK SALES OR BULK TRANSFERS LAWS OR
SOLELY AS A RESULT OF ANY "DEFACTO MERGER" OR "SUCCESSOR-IN-INTEREST" THEORIES
OF LIABILITY;
(M)
ANY LIABILITIES OR OBLIGATIONS ARISING OUT OF OR RELATED TO ANY
CONTRACT OTHER THAN ASSUMED CONTRACTS;
(N)
ANY LIABILITIES OR OBLIGATIONS SPECIFICALLY SET FORTH IN SCHEDULE
1.5(N) ATTACHED HERETO (THE "EXCLUDED LIABILITIES SCHEDULE"); AND
(O)
ANY OTHER LIABILITIES OR OBLIGATIONS OF SELLERS OTHER THAN ASSUMED
LIABILITIES.
For purposes of this Section 1.5, "Seller" shall be deemed to include all
Affiliates of the Seller and any predecessors to Sellers and any Person with
respect to which the Seller is a successor-in-interest (including by operation
of law, merger, liquidation, consolidation, assignment, assumption or
otherwise). The Seller hereby acknowledges that it is retaining the Excluded
Liabilities, and the Seller shall pay, discharge and perform all such Excluded
Liabilities promptly when due subject to Seller's right to contest same.
1.6
PURCHASE PRICE.
THE PURCHASE PRICE (THE "PURCHASE PRICE") FOR THE
ACQUIRED ASSETS SHALL BE AN AMOUNT EQUAL TO EIGHTEEN MILLION DOLLARS
($18,000,000) PLUS THE ESTIMATED BOOK VALUE OF THE ADDITIONAL ASSETS AS SET
FORTH ON SCHEDULE 1.2(L) LESS THE ESTIMATED AMOUNT OF ADDITIONAL LIABILITIES
LISTED ON SCHEDULE 1.4(D).
A LIST AND THE BOOK VALUE OF THE ADDITIONAL ASSETS
AND ADDITIONAL LIABILITIES AS OF MARCH 31, 2007 IS ATTACHED AS SCHEDULE 1.2(L)
AND 1.4(D). SELLER SHALL PREPARE AND DELIVER TO THE PURCHASER AT LEAST THREE (3)
DAYS PRIOR TO CLOSING AN UPDATE OF SUCH SCHEDULES COMPUTED IN THE SAME MANNER AS
SCHEDULE 1.2(L) AND 1.4(D).
SELLER SHALL PROVIDE PURCHASER WITH APPROPRIATE
DETAIL SUPPORTING ITS DETERMINATION.
SUCH DETERMINATION SHALL BE SUBJECT TO
ADJUSTMENT FOLLOWING CLOSING PURSUANT TO SECTION 1.8.
5
1.7
PAYMENT OF PURCHASE PRICE.
(A)
ON OR BEFORE THE CLOSE OF BUSINESS ON THE DATE HEREOF, THE
PURCHASER SHALL DELIVER TO THE ESCROW AGENT $500,000 (THE "DEPOSIT") OF THE
PURCHASE PRICE, TO BE HELD AND DISBURSED BY THE ESCROW AGENT PURSUANT TO THE
TERMS AND CONDITIONS OF AN ESCROW AGREEMENT SUBSTANTIALLY IN THE FORM ATTACHED
HERETO AS EXHIBIT 1.7(A) (THE "ESCROW AGREEMENT").
(B)
AT THE