Common use of Payment for Assets Clause in Contracts

Payment for Assets. (a) As payment in full for the Assets being acquired by the Buyer hereunder and the non-compete covenants set forth in Section 13(d) hereof, Buyer shall pay to the Company (and Company shall receive such payment on behalf of the Sellers) in the manner set forth in this Section 2, (i) the Merchandise Inventory Value, plus the Trade Receivables Value, plus the Prepaid Asset Value, plus the Fixed Asset Value, plus $10,000 in respect of the non-compete covenants set forth in Section 13(d), plus $315,000 in respect of goodwill, less (ii) the face value of all trade accounts payable and accrued expenses and other liabilities and obligations that are assumed at the Closing by the Buyer under Section 1(g)(A) and 1(g)(C) less accrued vacation and sick pay through the Closing of the business employees of the Sellers, but subject to further adjustment as provided in Section 3 (such amount, as so adjusted from time to time, is referred to herein as the “Purchase Price"). It is expressly understood by the parties that the Purchase Price will not be adjusted downward in the event Sellers, after using their best efforts, fail to obtain the necessary consents required to assign the Kohler Distribution Agreement. (b) In preparation for the Closing, the parties will prepare an estimate (the “Estimated Purchase Price”) of the actual Purchase Price by conducting the joint physical inventory and other procedures that are set forth in Section 1(a)(A) with the appropriate detailed listings and schedule. In order to plan for and facilitate the Closing, the Sellers will also provide Buyer with an estimated summary of the foregoing on the Valuation Date. Attached hereto and made a part hereof as Schedule 2(b) is the June 30, 2007 unaudited internal Balance Sheet of the Company that shall be delivered by Sellers pursuant to Section 6 and an example of the purchase price calculation in connection therewith attached hereto and made a part hereof. (c) On the Closing Date, the Buyer shall make payment of the Estimated Purchase Price as follows: Buyer shall deliver to the Company (and Company shall receive on behalf of the Sellers) by wire transfer of 5% of the Estimated Purchase Price (the “Escrow Amount”) to Xxxxxxxxxx Xxxxxxxx P.C., as escrow agent (the “Escrow Agent"), and by wire transfer of the balance thereof to the Company. The Escrow Amount shall be held by the Escrow Agent pursuant to the terms and conditions hereunder and pursuant to the terms and conditions of the Escrow Agreement attached hereto as Exhibit 2(c) (the “Escrow Agreement”). (d) [Intentionally Deleted]. (A) In the event Buyer fails to perform any of its obligations hereunder or under the employment and consulting agreements entered into by Buyer pursuant to this Agreement, Sellers’ shall provide Buyer written notice (a “Failure Notice”) specifying such failure and requiring such failure be remedied within 30 days, provided, however, that if any such failure cannot with due diligence be remedied by Buyer within a period of 30 days, if Buyer commences to remedy such failure within such 30 day period and thereafter prosecutes such remedy with reasonable diligence, the period of time for remedy of such failure shall be extended so long as Buyer prosecutes such remedy with reasonable diligence. Colonial hereby agrees to perform such failed obligation on behalf of the Buyer in the event Buyer shall have failed to remedy such failure in accordance with the prior sentence and Sellers provide Colonial with a written notice specifying the obligation that Buyer failed to cure along with a copy of the Failure Notice. (B) In the event Buyer fails to perform any of its obligations in accordance with the terms of any lease agreement entered into by Buyer pursuant to this Agreement, Sellers’ shall provide Buyer written notice (“Failure Notice”) specifying such failure and requiring such failure be remedied within 30 days, provided, however, that if any such failure cannot with due diligence be remedied by Buyer within a period of 30 days, if Buyer commences to remedy such failure within such 30 day period and thereafter prosecutes such remedy with reasonable diligence, the period of time for remedy of such failure shall be extended so long as Buyer prosecutes such remedy with reasonable diligence. Colonial hereby agrees to perform such failed obligation on behalf of the Buyer in the event Buyer shall have failed to remedy such failure in accordance with the prior sentence and Sellers provide Colonial with a written notice specifying the obligation that Buyer failed to cure along with a copy of the Failure Notice. (C) In the event Buyer contests any of the matters set forth in a Failure Notice, Buyer and Seller shall resolve such dispute exclusively by arbitration by the American Arbitration Association in Great Barrington, Massachusetts. Notwithstanding anything set forth in Section 2(e), in the event a Failure Notice is arbitrated in accordance with this section, Colonial’s obligations under Section 2(e) shall be subject to the finding of Buyer’s failure to perform by such arbitration.

Payment for Assets. (a) As payment in full for the Assets being acquired by the Buyer hereunder and the non-compete covenants set forth agreements referred to in Section 13(d7(c) hereof, Buyer shall pay to the Company (and Company shall receive such payment on behalf of the Sellers) (the "Purchase Price") in the manner set forth in this Section 2, (i) the Purchased Trade Receivables Value equal to $1,240,374, reduced by Assumed Trade Payables equal to $853,094, for a net Purchased Trade Receivables Value equal to $387,280; plus (ii) the Merchandise Inventory Value equal to $2,209,630 reduced by Assumed Trade Payables equal to $0, for a net Merchandise Inventory Value equal to $2,209,630, and further reduced by $275,000 {{discount}} for a total Net Merchandise Inventory Value equal to $1,934,630 ("Total Net Merchandise Inventory Value, plus the Trade Receivables Value, plus the Prepaid Asset Value, plus the Fixed Asset Value, plus $"); plus (iii) US$10,000 in respect of the non-compete covenants set forth in Section 13(d)agreements, plus $315,000 plus (iv) US$990,000 in respect of all other Assets, including goodwill, less plus (iiv) the face value of all trade accounts payable and accrued expenses and other liabilities and obligations that are assumed at the Closing by the Buyer under Section 1(g)(A) and 1(g)(C) less accrued vacation and sick pay through the Closing US$25,000 in respect of the business employees of Zanlacol inventory. (vi) Notwithstanding any other provision in this Agreement, in the Sellers, but subject event Xxxxxxx is terminated for Cause (as defined in his employment agreement referred to further adjustment as provided in Section 3 7(c)(ii)) or Xxxxxxx terminates his employment with Buyer for any reason or for no reason (other than for disability and/or death), such amount, as so adjusted from time termination shall be considered a fundamental breach of this Agreement by Sellers and Sellers shall have forfeited their rights to time, is referred to herein as the “Purchase Price"). It is expressly understood by the parties that any portion of the Purchase Price will not be adjusted downward in theretofore due and paid by Buyer to Sellers and Buyer shall have no obligation to make any then remaining outstanding Purchase Price payments to Sellers. Xxxxxxx may dispute his termination for Cause. In the event Sellers, after using their best efforts, fail to obtain the necessary consents required to assign the Kohler Distribution Agreement. (b) In preparation for the Closing, the parties will prepare an estimate (the “Estimated Purchase Price”) of the actual Purchase Price by conducting the joint physical inventory and other procedures that are set forth in Section 1(a)(A) with the appropriate detailed listings and schedule. In order to plan for and facilitate the Closing, the Sellers will also provide Buyer with an estimated summary of the foregoing Xxxxxxx prevails on the Valuation Date. Attached hereto and made a part hereof as Schedule 2(b) is the June 30issue of Cause, 2007 unaudited internal Balance Sheet of the Company that shall be delivered by Sellers pursuant to Section 6 and an example of the purchase price calculation in connection therewith attached hereto and made a part hereof. (c) On the Closing Date, the then Buyer shall make payment of the Estimated Purchase Price as follows: Buyer shall deliver forthwith remit to the Company (and Company shall receive on behalf the portion of the Sellers) by wire transfer of 5% of the Estimated Purchase Price (then due, if any, together with interest accrued thereon at the “Escrow Amount”) to Xxxxxxxxxx Xxxxxxxx P.C., as escrow agent (the “Escrow Agent"), and by wire transfer of the balance thereof JPMorganChase prime rate to the Company. The Escrow Amount shall be held by the Escrow Agent pursuant to the terms and conditions hereunder and pursuant to the terms and conditions of the Escrow Agreement attached hereto as Exhibit 2(c) (the “Escrow Agreement”). (d) [Intentionally Deleted]. (A) In the event Buyer fails to perform any of its obligations hereunder or under the employment and consulting agreements entered into by Buyer pursuant to this Agreement, Sellers’ shall provide Buyer written notice (a “Failure Notice”) specifying such failure and requiring such failure be remedied within 30 days, provided, however, that if extent any such failure cannot with due diligence be remedied by Buyer within a period of 30 days, if Buyer commences to remedy such failure within such 30 day period and thereafter prosecutes such remedy with reasonable diligence, payments were withheld from the Company during the period of time for remedy of such failure shall be extended so long as Buyer prosecutes such remedy with reasonable diligence. Colonial hereby agrees to perform such failed obligation on behalf of the Buyer in the event Buyer shall have failed to remedy such failure in accordance with the prior sentence and Sellers provide Colonial with a written notice specifying the obligation that Buyer failed to cure along with a copy of the Failure Noticedispute. (B) In the event Buyer fails to perform any of its obligations in accordance with the terms of any lease agreement entered into by Buyer pursuant to this Agreement, Sellers’ shall provide Buyer written notice (“Failure Notice”) specifying such failure and requiring such failure be remedied within 30 days, provided, however, that if any such failure cannot with due diligence be remedied by Buyer within a period of 30 days, if Buyer commences to remedy such failure within such 30 day period and thereafter prosecutes such remedy with reasonable diligence, the period of time for remedy of such failure shall be extended so long as Buyer prosecutes such remedy with reasonable diligence. Colonial hereby agrees to perform such failed obligation on behalf of the Buyer in the event Buyer shall have failed to remedy such failure in accordance with the prior sentence and Sellers provide Colonial with a written notice specifying the obligation that Buyer failed to cure along with a copy of the Failure Notice. (C) In the event Buyer contests any of the matters set forth in a Failure Notice, Buyer and Seller shall resolve such dispute exclusively by arbitration by the American Arbitration Association in Great Barrington, Massachusetts. Notwithstanding anything set forth in Section 2(e), in the event a Failure Notice is arbitrated in accordance with this section, Colonial’s obligations under Section 2(e) shall be subject to the finding of Buyer’s failure to perform by such arbitration.

Payment for Assets. (a) As payment in full The consideration due Optionor by Optionee for the Assets being acquired by the Buyer hereunder and the non-compete covenants set forth in Section 13(d) hereof, Buyer shall pay to the Company (and Company shall receive such payment on behalf purchase of the Sellers) in the manner set forth in this Section 2, Assets (i) the Merchandise Inventory Value, plus the Trade Receivables Value, plus the Prepaid Asset Value, plus the Fixed Asset Value, plus $10,000 in respect of the non-compete covenants set forth in Section 13(d), plus $315,000 in respect of goodwill, less (ii) the face value of all trade accounts payable and accrued expenses and other liabilities and obligations that are assumed at the Closing by the Buyer under Section 1(g)(A) and 1(g)(C) less accrued vacation and sick pay through the Closing of the business employees of the Sellers, but subject to further adjustment as provided in Section 3 (such amount, as so adjusted from time to time, is referred to herein as the “Purchase Price"”) shall be either (i) a cash payment (“Cash Payment”). It is expressly understood , or (ii) a volumetric production payment (“Volumetric Production Payment”), to be determined as set forth below. (a) Optionor and Optionee shall have until the end of the month of November following an Option Exercise Date to negotiate and agree upon, based upon the remaining amount and value of Net Proved Reserves attributable to the Assets, the Cash Payment amount to be paid by Optionee or the parties that terms of the Purchase Price will not Volumetric Production Payment to be adjusted downward in conveyed to Optionor, with respect to the event Sellers, after using their best efforts, fail to obtain the necessary consents required to assign the Kohler Distribution AgreementAssets. (b) In preparation for the Closingevent Optionor and Optionee are unable to agree as provided under Section 2.5(a), above, then, on or before December 1 of such year, either Party may request that XxXxxxxx and XxxXxxxxxxx (“D&M”) furnish the parties will prepare an estimate Parties with a report (the “Estimated Purchase PriceD&M Report”) setting forth the following: (i) A Cash Payment amount equal to the present value of Net Proved Reserves, determined as follows: (1) D&M’s estimate of Net Proved Reserves for the Assets as of the actual Purchase Price by conducting end of the joint physical inventory year in which the option is exercised (as utilized herein, “Net Proved Reserves” shall refer to Proved Reserves, net to the Designated Interest, i.e., the applicable net revenue interest, and other procedures that are set forth after further deducting Optionor’s retained overriding royalty interest); (2) Pricing based upon a five (5) year forward strip as determined on the last trading day of the oil futures contracts on the NYMEX for the year in which the option is exercised, with prices for year six (6) and beyond based on the average NYMEX price for the fifth year of the strip; (3) Operating expenses for the calculation of the Cash Payment shall be based upon a review and average of Optionor’s operating expenses attributable to the Assets for twelve (12) months prior to the Exercise Effective Time on a dollar per BOE basis (“Asset Operating Expense”); and (4) A net present value discount rate of ten (10%) percent. (ii) The following Volumetric Production Payment terms: (1) Net Proved Reserve volume schedule for the Assets for the ten (10) years following the Exercise Effective Time; (2) The Asset Operating Expense; and (3) The Residual Asset Reserve Value for the Proved Reserves attributable to time periods after said ten (10) year period, calculated in the same manner as provided under Section 1(a)(A) 2.5(b)(i), above, and paid in a lump sum. Both Parties may furnish D&M with any data and information they feel pertinent to the appropriate detailed listings determination. D&M shall deliver the D&M Report to both Parties no later than January 15 of the calendar year following the Option Exercise Date. D&M’s determinations on the above shall be final and schedulenonappealable. In order to plan for and facilitate the Closingevent D&M is not in existence at the time the Option Exercise Notice is given, the Sellers will also provide Buyer with an estimated summary of the foregoing on the Valuation Date. Attached hereto and made a part hereof as Schedule 2(b) is the June 30, 2007 unaudited internal Balance Sheet of the Company that successor company to D&M shall be delivered by Sellers pursuant utilized, and should no successor company exist, then the Parties shall agree on an independent reserve analysis company to Section 6 and an example make the above determinations in lieu of the purchase price calculation in connection therewith attached hereto and made a part hereof.D&M. (c) On the Closing Date, the Buyer Optionor shall make payment have fifteen (15) days after receipt of the Estimated Purchase Price as follows: Buyer shall deliver D&M Report to the Company (and Company shall notify Optionee of its election whether to receive on behalf of the Sellers) by wire transfer of 5% of the Estimated Purchase Price (the “Escrow Amount”) to Xxxxxxxxxx Xxxxxxxx P.C., as escrow agent (the “Escrow Agent"), and by wire transfer of the balance thereof to the Companya Cash Payment or a Volumetric Production Payment. The Escrow Amount shall be held by the Escrow Agent pursuant to the terms and conditions hereunder and pursuant to the terms and conditions of the Escrow Agreement attached hereto as Exhibit 2(c) (the “Escrow Agreement”). (d) [Intentionally Deleted]. (A) In the event Buyer Optionor fails to perform any of its obligations hereunder or under the employment and consulting agreements entered into by Buyer pursuant to this Agreementelect within said time period, Sellers’ shall provide Buyer written notice (a “Failure Notice”) specifying such failure and requiring such failure be remedied within 30 days, provided, however, that if any such failure cannot with due diligence be remedied by Buyer within a period of 30 days, if Buyer commences to remedy such failure within such 30 day period and thereafter prosecutes such remedy with reasonable diligence, the period of time for remedy of such failure Optionor shall be extended so long as Buyer prosecutes such remedy with reasonable diligence. Colonial hereby agrees deemed to perform such failed obligation on behalf of the Buyer in the event Buyer shall have failed elected to remedy such failure in accordance with the prior sentence and Sellers provide Colonial with receive a written notice specifying the obligation that Buyer failed to cure along with a copy of the Failure NoticeCash Payment. (B) In the event Buyer fails to perform any of its obligations in accordance with the terms of any lease agreement entered into by Buyer pursuant to this Agreement, Sellers’ shall provide Buyer written notice (“Failure Notice”) specifying such failure and requiring such failure be remedied within 30 days, provided, however, that if any such failure cannot with due diligence be remedied by Buyer within a period of 30 days, if Buyer commences to remedy such failure within such 30 day period and thereafter prosecutes such remedy with reasonable diligence, the period of time for remedy of such failure shall be extended so long as Buyer prosecutes such remedy with reasonable diligence. Colonial hereby agrees to perform such failed obligation on behalf of the Buyer in the event Buyer shall have failed to remedy such failure in accordance with the prior sentence and Sellers provide Colonial with a written notice specifying the obligation that Buyer failed to cure along with a copy of the Failure Notice. (C) In the event Buyer contests any of the matters set forth in a Failure Notice, Buyer and Seller shall resolve such dispute exclusively by arbitration by the American Arbitration Association in Great Barrington, Massachusetts. Notwithstanding anything set forth in Section 2(e), in the event a Failure Notice is arbitrated in accordance with this section, Colonial’s obligations under Section 2(e) shall be subject to the finding of Buyer’s failure to perform by such arbitration.

Payment for Assets. (a) As payment in full The consideration due Optionor by Optionee for the Assets being acquired by the Buyer hereunder and the non-compete covenants set forth in Section 13(d) hereof, Buyer shall pay to the Company (and Company shall receive such payment on behalf purchase of the Sellers) in the manner set forth in this Section 2, Assets (i) the Merchandise Inventory Value, plus the Trade Receivables Value, plus the Prepaid Asset Value, plus the Fixed Asset Value, plus $10,000 in respect of the non-compete covenants set forth in Section 13(d), plus $315,000 in respect of goodwill, less (ii) the face value of all trade accounts payable and accrued expenses and other liabilities and obligations that are assumed at the Closing by the Buyer under Section 1(g)(A) and 1(g)(C) less accrued vacation and sick pay through the Closing of the business employees of the Sellers, but subject to further adjustment as provided in Section 3 (such amount, as so adjusted from time to time, is referred to herein as the “Purchase Price"”) shall be either (i) a cash payment (“Cash Payment”). It is expressly understood , or (ii) a volumetric production payment (“Volumetric Production Payment”), to be determined as set forth below. (a) Optionor and Optionee shall have until the end of the month of November following an Option Exercise Date to negotiate and agree upon, based upon the remaining amount and value of Net Proved Reserves attributable to the Assets, the Cash Payment amount to be paid by Optionee or the parties that terms of the Purchase Price will not Volumetric Production Payment to be adjusted downward in conveyed to Optionor, with respect to the event Sellers, after using their best efforts, fail to obtain the necessary consents required to assign the Kohler Distribution AgreementAssets. (b) In preparation for the Closingevent Optionor and Optionee are unable to agree as provided under Section 2.5(a), above, then, on or before December 1 of such year, either Party may request that XxXxxxxx and XxxXxxxxxxx (“D&M”) furnish the parties will prepare an estimate Parties with a report (the “Estimated Purchase PriceD&M Report”) setting forth the following: (i) A Cash Payment amount equal to the present value of Net Proved Reserves, determined as follows: (1) D&M’s estimate of Net Proved Reserves for the Assets as of the actual Purchase Price by conducting end of the joint physical inventory year in which the option is exercised (as utilized herein, “Net Proved Reserves” shall refer to Proved Reserves, net to the Designated Interest, i.e., the applicable net revenue interest, and other procedures that are set forth after further deducting Optionor’s retained overriding royalty interest); (2) Pricing based upon a five (5) year forward strip as determined on the last trading day of the oil futures contracts on the NYMEX for the year in which the option is exercised, with prices for year six (6) and beyond based on the average NYMEX price for the fifth year of the strip; (3) Operating expenses for the calculation of the Cash Payment shall be based upon a review and average of Optionor’s operating expenses attributable to the Assets for twelve (12) months prior to the Exercise Effective Time on a dollar per BOE basis (“Asset Operating Expense”); and (4) A net present value discount rate of ten (10%) percent. (ii) The following Volumetric Production Payment terms: (1) Net Proved Reserve volume schedule for the Assets for the ten (10) years following the Exercise Effective Time; (2) The Asset Operating Expense; and (3) The Residual Asset Reserve Value for the Proved Reserves attributable to time periods after said ten (10) year period, calculated in the same manner as provided under Section 1(a)(A) 2.5(b)(i), above, and paid in a lump sum. Both Parties may furnish D&M with any data and information they feel pertinent to the appropriate detailed listings determination. D&M shall deliver the D&M Report to both Parties no later than January 15 of the calendar year following the Option Exercise Date. D&M’s determinations on the above shall be final and schedulenonappealable. In order to plan for and facilitate the Closingevent D&M is not in existence at the time the Option Exercise Notice is given, the Sellers will also provide Buyer with an estimated summary of the foregoing on the Valuation Date. Attached hereto and made a part hereof as Schedule 2(b) is the June 30, 2007 unaudited internal Balance Sheet of the Company that successor company to D&M shall be delivered by Sellers pursuant utilized, and should no successor company exist, then the Parties shall agree on an independent reserve analysis company to Section 6 and an example make the above determinations in lieu of the purchase price calculation in connection therewith attached hereto and made a part hereof.D&M. (c) On the Closing Date, the Buyer Optionor shall make payment have () days after receipt of the Estimated Purchase Price as follows: Buyer shall deliver D&M Report to the Company (and Company shall notify Optionee of its election whether to receive on behalf of the Sellers) by wire transfer of 5% of the Estimated Purchase Price (the “Escrow Amount”) to Xxxxxxxxxx Xxxxxxxx P.C., as escrow agent (the “Escrow Agent"), and by wire transfer of the balance thereof to the Companya Cash Payment or a Volumetric Production Payment. The Escrow Amount shall be held by the Escrow Agent pursuant to the terms and conditions hereunder and pursuant to the terms and conditions of the Escrow Agreement attached hereto as Exhibit 2(c) (the “Escrow Agreement”). (d) [Intentionally Deleted]. (A) In the event Buyer Optionor fails to perform any of its obligations hereunder or under the employment and consulting agreements entered into by Buyer pursuant to this Agreementelect within said time period, Sellers’ shall provide Buyer written notice (a “Failure Notice”) specifying such failure and requiring such failure be remedied within 30 days, provided, however, that if any such failure cannot with due diligence be remedied by Buyer within a period of 30 days, if Buyer commences to remedy such failure within such 30 day period and thereafter prosecutes such remedy with reasonable diligence, the period of time for remedy of such failure Optionor shall be extended so long as Buyer prosecutes such remedy with reasonable diligence. Colonial hereby agrees deemed to perform such failed obligation on behalf of the Buyer in the event Buyer shall have failed elected to remedy such failure in accordance with the prior sentence and Sellers provide Colonial with receive a written notice specifying the obligation that Buyer failed to cure along with a copy of the Failure NoticeCash Payment. (B) In the event Buyer fails to perform any of its obligations in accordance with the terms of any lease agreement entered into by Buyer pursuant to this Agreement, Sellers’ shall provide Buyer written notice (“Failure Notice”) specifying such failure and requiring such failure be remedied within 30 days, provided, however, that if any such failure cannot with due diligence be remedied by Buyer within a period of 30 days, if Buyer commences to remedy such failure within such 30 day period and thereafter prosecutes such remedy with reasonable diligence, the period of time for remedy of such failure shall be extended so long as Buyer prosecutes such remedy with reasonable diligence. Colonial hereby agrees to perform such failed obligation on behalf of the Buyer in the event Buyer shall have failed to remedy such failure in accordance with the prior sentence and Sellers provide Colonial with a written notice specifying the obligation that Buyer failed to cure along with a copy of the Failure Notice. (C) In the event Buyer contests any of the matters set forth in a Failure Notice, Buyer and Seller shall resolve such dispute exclusively by arbitration by the American Arbitration Association in Great Barrington, Massachusetts. Notwithstanding anything set forth in Section 2(e), in the event a Failure Notice is arbitrated in accordance with this section, Colonial’s obligations under Section 2(e) shall be subject to the finding of Buyer’s failure to perform by such arbitration.