THE CONSENT OF SOME OTHER PERSON.
SELLER HAS TAKEN
OR CAUSED TO BE TAKEN BY OTHERS, ALL COMMERCIALLY REASONABLE ACTIONS TO
(I) OBTAIN OR SATISFY ALL CONSENTS FROM ANY PERSONS NECESSARY TO AUTHORIZE,
APPROVE OR PERMIT THE FULL AND COMPLETE SALE, CONVEYANCE, ASSIGNMENT, SUBLEASE
OR TRANSFER OF THE PURCHASED ASSETS, (II) ENSURE THAT ANY CONTRACTS ASSIGNED TO
BUYER, AS CONTEMPLATED BY THIS AGREEMENT, ARE ASSIGNED ON THE SAME TERMS AS ARE
DISCLOSED ON THE SCHEDULES TO THIS AGREEMENT, AND (III) CONSUMMATE AND MAKE
EFFECTIVE THE CONTEMPLATED TRANSACTIONS.
IN ADDITION, SELLER AGREES TO TAKE, OR
CAUSE TO BE TAKEN, ALL COMMERCIALLY REASONABLE ACTIONS TO CONTINUE SUCH EFFORTS
AS MAY BE REQUIRED AFTER THE CLOSING DATE TO FACILITATE THE FULL AND EXPEDITIOUS
ASSIGNMENT, TRANSFER OF LEGAL TITLE, OR SUBLEASE, AS THE CASE MAY BE, OF THE
PURCHASED ASSETS.
(B)
NONASSIGNABLE ITEMS.
ANYTHING IN THIS
AGREEMENT TO THE CONTRARY NOTWITHSTANDING, THIS AGREEMENT SHALL NOT CONSTITUTE
AN AGREEMENT TO SELL, CONVEY, ASSIGN, SUBLEASE OR TRANSFER ANY PURCHASED ASSETS,
INCLUDING CONTRACTS AND GOVERNMENTAL AUTHORIZATIONS, IF AN ATTEMPTED SALE,
CONVEYANCE, ASSIGNMENT, SUBLEASE OR TRANSFER THEREOF, WITHOUT THE CONSENT OF
ANOTHER PERSON, WOULD CONSTITUTE A BREACH OF, OR IN ANY WAY AFFECT THE RIGHTS OF
EITHER SELLER OR BUYER WITH RESPECT TO, SUCH PURCHASED ASSETS (COLLECTIVELY, THE
"NONASSIGNABLE ITEMS"). SELLER SHALL USE ITS COMMERCIALLY REASONABLE EFFORTS
(AND BUYER SHALL COOPERATE IN ALL REASONABLE RESPECTS WITH SELLER) TO OBTAIN AND
SATISFY ALL CONSENTS AND TO RESOLVE ALL IMPRACTICALITIES OF SALE, CONVEYANCE,
ASSIGNMENT, SUBLEASE OR TRANSFER NECESSARY TO CONVEY TO BUYER ALL NONASSIGNABLE
ITEMS. IF ANY SUCH CONSENTS ARE NOT OBTAINED AND SATISFIED OR IF AN ATTEMPTED
SALE, CONVEYANCE, ASSIGNMENT, SUBLEASE OR TRANSFER WOULD BE INEFFECTIVE, SELLER
AND ITS AFFILIATES SHALL ENTER INTO SUCH ARRANGEMENTS (INCLUDING RELATED WRITTEN
AGREEMENTS) AS BUYER MAY REASONABLY REQUEST TO PROVIDE BUYER WITH THE BENEFIT OF
THE NONASSIGNABLE ITEMS.
2.6
SALE AND PURCHASE OF XCEL JAPAN SHARES.
SUBJECT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, AT THE CLOSING, SELLER
WILL SELL AND TRANSFER THE XCEL JAPAN SHARES TO STOCK BUYER, AND STOCK BUYER
WILL PURCHASE THE XCEL JAPAN SHARES FROM SELLER.
2.7
PURCHASE PRICE.
SUBJECT TO SECTION 2.10,
THE PURCHASE PRICE (THE "PURCHASE PRICE") FOR THE XCEL JAPAN SHARES AND
PURCHASED ASSETS WILL BE PAYABLE AT OR AFTER THE CLOSING, AS THE CASE MAY BE,
AND IN THE MANNER AS FURTHER DESCRIBED BELOW:
(A)
CASH AT CLOSING.
AT THE CLOSING, BUYER
WILL PAY TO SELLER BY WIRE TRANSFER IN IMMEDIATELY AVAILABLE FUNDS AN AMOUNT
EQUAL TO THE SUM OF (I) $11,500,000 (THE PORTION OF SUCH SUM AS IS ATTRIBUTABLE
TO THE PRICE OF THE XCEL JAPAN SHARES HAVING BEEN PROVIDED TO BUYER FROM STOCK
BUYER) PLUS (II) THE FINANCED EQUIPMENT AMOUNT (COLLECTIVELY, THE "CLOSING CASH
CONSIDERATION") PLUS (III) THE PRORATED RENT AMOUNT MINUS (IV) THE AGGREGATE
AMOUNT OF THE CLOSING ACCOUNTS PAYABLE.
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(B)
DEFERRED PURCHASE PRICE.
(I)
IF NET SALES FOR FISCAL YEAR 2009 (WHICH
IS THE CALENDAR YEAR) EXCEED $6,835,120, BUYER SHALL PAY TO SELLER, IN
ACCORDANCE WITH THE PROCEDURES