CONTRARY IN THIS AGREEMENT, THE PARTIES EXPRESSLY ACKNOWLEDGE AND AGREE THAT
BUYER SHALL NOT ASSUME OR IN ANY MANNER WHATSOEVER BE LIABLE OR RESPONSIBLE FOR
ANY LIABILITY OR OBLIGATION OF SELLER, OR OF ANY PREDECESSOR OR AFFILIATE OF
SELLER, OTHER THAN THE ASSUMED LIABILITIES.
1.4
NON-ASSIGNMENT OF ASSIGNED CONTRACTS. NOTWITHSTANDING ANYTHING TO
THE CONTRARY IN THIS AGREEMENT, THIS AGREEMENT SHALL NOT CONSTITUTE AN AGREEMENT
TO ASSIGN ANY ASSIGNED CONTRACT IF, AFTER GIVING EFFECT TO SECTIONS 363 AND 365
OF THE BANKRUPTCY CODE, AN ATTEMPTED ASSIGNMENT THEREOF, WITHOUT OBTAINING A
CONSENT, WOULD CONSTITUTE A BREACH THEREOF BY THE ASSIGNEE OF SUCH ASSIGNED
CONTRACT, UNLESS AND UNTIL SUCH CONSENT SHALL HAVE BEEN OBTAINED. IF, AFTER
GIVING EFFECT TO PROVISIONS OF SECTIONS 363 AND 365 OF THE BANKRUPTCY CODE, SUCH
CONSENT IS REQUIRED BUT NOT OBTAINED, SELLER SHALL, AT BUYER'S SOLE COST AND
EXPENSE, COOPERATE WITH BUYER IN ANY REASONABLE ARRANGEMENT DESIGNED TO PROVIDE
FOR BUYER THE BENEFITS AND OBLIGATIONS OF OR UNDER SUCH ASSIGNED CONTRACT,
INCLUDING THE ENFORCEMENT THEREOF FOR THE BENEFIT OF BUYER OF ANY AND ALL RIGHTS
OF SELLER AGAINST A THIRD PARTY THERETO ARISING OUT OF THE BREACH OR
CANCELLATION THEREOF BY SUCH THIRD PARTY. SELLER SHALL SEEK AN ORDER FROM THE
BANKRUPTCY COURT PROVIDING THAT (I) ALL PARTIES TO EXECUTORY CONTRACTS SHALL BE
GIVEN NOTICE OF SELLER'S ASSIGNMENT AND BUYER'S ASSUMPTION OF ASSIGNED CONTRACTS
AND (II) A PARTY'S FAILURE TO TIMELY OBJECT TO SUCH ASSIGNMENT AND SUCH
ASSUMPTION SHALL BE DEEMED TO CONSTITUTE SUCH PARTY'S CONSENT TO SUCH ASSIGNMENT
AND ASSUMPTION. ANY ASSIGNMENT TO BUYER OF ANY ASSIGNED CONTRACT THAT, AFTER
GIVING EFFECT TO THE PROVISIONS OF SECTIONS 363 AND 365 OF THE BANKRUPTCY CODE,
REQUIRES THE CONSENT OF ANY THIRD PARTY FOR SUCH ASSIGNMENT AS AFORESAID SHALL
BE MADE SUBJECT TO SUCH CONSENT BEING OBTAINED.
2.
Purchase Price and Payment; Assumption of Liabilities; Cure
Costs.
2.1
PURCHASE PRICE. THE PURCHASE PRICE (THE "PURCHASE PRICE") PAYABLE
BY BUYER TO SELLER FOR THE SALE, TRANSFER, ASSIGNMENT, CONVEYANCE, AND DELIVERY
TO BUYER OF THE PURCHASED ASSETS SHALL BE EQUAL TO THE SUM OF (I) FIFTY-SEVEN
MILLION ONE HUNDRED NINETY-NINE THOUSAND DOLLARS ($57,199,000), PLUS (II) THE
ACTUAL PRICE ADJUSTMENT, MINUS (III) THE AMOUNT OF THE CURE COSTS, MINUS (IV)
THE AMOUNT OF ANY REDUCTION PURSUANT TO SECTION 3.5.3, MINUS (V) ONE MILLION
DOLLARS ($1,000,000) IN THE EVENT OF A CO-GENERATION FACILITY SHUTDOWN
DETERMINATION.
2.2
DEPOSIT ESCROW. SUBJECT TO THE TERMS AND CONDITIONS OF A DEPOSIT
ESCROW AGREEMENT ENTERED INTO AMONG BUYER, SELLER, AND THE ESCROW AGENT, IN
SUBSTANTIALLY THE FORM ATTACHED AS EXHIBIT A-1 (THE "DEPOSIT ESCROW AGREEMENT"),
NOT LATER THAN THE BUSINESS DAY AFTER THE EFFECTIVE DATE, BUYER SHALL DELIVER TO
AND DEPOSIT IN TRUST WITH CHICAGO TITLE INSURANCE COMPANY (THE "ESCROW AGENT")
THE SUM OF FIVE MILLION DOLLARS ($5,000,000) (THE "DEPOSIT") IN IMMEDIATELY
AVAILABLE, GOOD FUNDS. UPON RECEIPT OF THE DEPOSIT, THE ESCROW AGENT SHALL
IMMEDIATELY DEPOSIT THE DEPOSIT INTO AN INTEREST-BEARING ACCOUNT PURSUANT TO THE
DEPOSIT ESCROW AGREEMENT. ON THE BUSINESS DAY FOLLOWING ENTRY OF THE APPROVAL
ORDER