MEANS SUCH
ARTICLE, SECTION, SCHEDULE OR EXHIBIT TO THIS AGREEMENT, AND REFERENCES IN ANY
ARTICLE, SECTION, SCHEDULE, EXHIBIT OR DEFINITION TO ANY CLAUSE MEANS SUCH
CLAUSE OF SUCH ARTICLE, SECTION, SCHEDULE, EXHIBIT OR DEFINITION;
(VI)
"HEREUNDER," "HEREOF," "HERETO" AND WORDS OF SIMILAR IMPORT ARE
REFERENCES TO THIS AGREEMENT AS A WHOLE AND NOT TO ANY PARTICULAR SECTION OR
OTHER PROVISION HEREOF OR THEREOF;
(VII)
"INCLUDING" (AND WITH CORRELATIVE MEANING "INCLUDE") MEANS
INCLUDING WITHOUT LIMITING THE GENERALITY OF ANY DESCRIPTION PRECEDING SUCH
TERM;
(VIII)
RELATIVE TO THE DETERMINATION OF ANY PERIOD OF TIME, "FROM" MEANS
"FROM AND INCLUDING," "TO" MEANS "TO BUT EXCLUDING," AND "THROUGH" MEANS
"THROUGH AND INCLUDING";
(IX)
THE WORD "WILL" SHALL BE CONSTRUED TO HAVE THE SAME MEANING AND
EFFECT AS THE WORD "SHALL"; AND
10
(X)
REFERENCE TO ANY LAW (INCLUDING STATUTES AND ORDINANCES) MEANS
SUCH LAW AS AMENDED, MODIFIED CODIFIED OR REENACTED, IN WHOLE OR IN PART, AND IN
EFFECT FROM TIME TO TIME, INCLUDING RULES AND REGULATIONS PROMULGATED
THEREUNDER.
ARTICLE II
SALE AND PURCHASE OF THE MEMBERSHIP INTEREST
2.01
MEMBERSHIP INTEREST TO BE SOLD.
SUBJECT TO THE TERMS AND CONDITIONS OF
THIS AGREEMENT, AT THE CLOSING PROVIDED FOR IN SECTION 3.01 HEREOF (THE
"CLOSING"), SELLER SHALL SELL, TRANSFER AND DELIVER THE MEMBERSHIP INTEREST TO
PURCHASER, AND PURCHASER SHALL PURCHASE THE MEMBERSHIP INTEREST FROM SELLER,
PURSUANT TO SECTION 363 OF THE BANKRUPTCY CODE AND THE SALE ORDER.
2.02
PURCHASE PRICE AND PAYMENT.
SUBJECT TO THE TERMS AND CONDITIONS OF
THIS AGREEMENT, AS CONSIDERATION FOR THE MEMBERSHIP INTEREST, PURCHASER WILL PAY
TO SELLER IN CASH AN AGGREGATE OF THREE MILLION U.S. DOLLARS ($3,000,000) (THE
"PURCHASE PRICE").
PURCHASER SHALL PAY TEN PERCENT (10%) OF SUCH AMOUNT AS A
DOWN PAYMENT (THE "DOWN PAYMENT") TO ESCROW AGENT WITHIN TEN (10) BUSINESS DAYS
OF THE EFFECTIVE DATE IN ACCORDANCE WITH THE TERMS AND PROVISIONS OF THE ESCROW
AGREEMENT.
THE BALANCE OF THE PURCHASE PRICE SHALL BE PAYABLE BY PURCHASER AT
THE CLOSING.
BOTH PAYMENTS SHALL BE MADE BY WIRE TRANSFER IN U.S. DOLLARS IN
IMMEDIATELY AVAILABLE FUNDS TO SUCH ACCOUNT(S) AS SELLER WILL DESIGNATE.
2.03
ADJUSTMENTS TO THE PURCHASE PRICE.
THE PURCHASE PRICE IS SUBJECT TO
ADJUSTMENT IN ACCORDANCE WITH THE FOLLOWING:
(A)
WORKING CAPITAL.
(I)
WITHIN NINETY (90) DAYS AFTER THE CLOSING, SELLER SHALL CALCULATE
THE AMOUNT OF NET WORKING CAPITAL AT THE COMPANY AS OF THE CLOSING DATE AND
PROVIDE WRITTEN NOTICE OF SUCH AMOUNT TO PURCHASER.
TO THE EXTENT THAT THE
AMOUNT OF THE NET WORKING CAPITAL IS GREATER THAN ZERO, PURCHASER SHALL PAY
SELLER AN ADJUSTMENT WITHIN FIFTEEN (15) DAYS OF RECEIVING THE NOTICE FROM
SELLER; AND TO THE EXTENT THAT THE AMOUNT OF THE NET WORKING CAPITAL IS LESS
THAN ZERO, SELLER SHALL PAY PURCHASER AN ADJUSTMENT WITHIN FIFTEEN (15) DAYS OF
ISSUING SUCH NOTICE.
FOR PURPOSES HEREOF, "NET WORKING CAPITAL" SHALL MEAN CASH
AND CASH EQUIVALENTS, ACCOUNTS RECEIVABLE (EXCLUDING ACCOUNTS RECEIVABLE DUE
FROM ITS AFFILIATES THAT HAVE BEEN ASSIGNED TO SELLER OR ITS DESIGNEE PURSUANT
TO SECTION 2.03(F)), PREPAYMENTS (INCLUDING PREPAID REAL ESTATE