Common use of Consideration Payment Clause in Contracts

Consideration Payment. (a) In order to facilitate the consummation of the OpCo Closing, at the OpCo Closing, the following steps shall be deemed to occur in the following order: (i) to effect the portion of the Credit Bid with respect to the OpCo Sale, BidCo (or its Designee(s)) shall be deemed to assign to OpCo Purchaser a portion of the Credit Bid Amount (the “OpCo Credit Bid Amount”), which OpCo Credit Bid Amount shall be comprised of a portion of (A) the Term Loan Obligations and First Lien Notes Obligations, and (B) the DIP Obligations, which portions shall be proportionate to the total amount of Term Loan Obligations and First Lien Notes Obligations and DIP Obligations as constitute the total Credit Bid Amount; (ii) as consideration for the deemed assignment of the OpCo Credit Bid Amount described in clause (i), OpCo Purchaser (or its Designee(s)) shall (A) deliver, or cause to be delivered, to or at the direction of PropCo Purchaser, a cash payment equal to one million dollars ($1,000,000) to an account designated by Earnout Co. and (B) take the actions contemplated by Section 2.5(b); (iii) OpCo Purchaser shall (or shall cause its Designee to): (A) credit bid the OpCo Credit Bid Amount; (B) deliver, or cause to be delivered, to the Company, a cash payment (the “OpCo-Company Closing Date Payment”) equal to: (1) six hundred ninety-two million dollars ($692,000,000); plus (2) the Payoff Amount; plus (3) fifty percent (50%) of the amount (if any) by which Estimated October EBITDA exceeds the Target October EBITDA; less (4) fifty percent (50%) of the amount (if any) by which Target October EBITDA exceeds Estimated October EBITDA; less (5) the Estimated Closing Cash; less

Consideration Payment. (a) In order to facilitate The purchase price for the consummation of the OpCo Closing, at the OpCo Closing, the following steps Company ----------------------- Shares shall be deemed up to occur in the following orderThree Million Dollars ($3,000,000), payable as follows: (i) One Million Dollars ($1,000,000) will be paid by the delivery of and performance under and pursuant to effect the portion terms and conditions of a Promissory Note in substantially the form attached hereto as Exhibit 2b(i) (the "Purchase Note") to be executed and delivered by Purchaser in favor of the Credit Bid with respect Company. All amounts advanced by Upgrade to the OpCo Sale, BidCo (or its Designee(s)) Company prior to the Closing shall be deemed credited against amounts due under the Purchase Note. All amounts advanced shall be disbursed by Jerry L. Smith ("Smit▇") ▇▇ ▇▇▇▇▇▇▇nce ▇▇▇▇ the provisions of section 7(c) hereto. Upgrade has previously advanced $150,000 to assign the Company and shall advance an additional $100,000 at Closing. Upgrade shall deliver to OpCo Purchaser a portion the Company at Closing the Promissory Note of the Credit Bid Amount (Company dated February 4, 1999 in the “OpCo Credit Bid Amount”), which OpCo Credit Bid Amount shall be comprised principal amount of a portion of (A) the Term Loan Obligations and First Lien Notes Obligations$100,000, and (B) shall release the DIP Obligations, which portions shall be proportionate to the total amount of Term Loan Obligations and First Lien Notes Obligations and DIP Obligations as constitute the total Credit Bid Amount;security therefor. (ii) as consideration for During the deemed assignment second twelve month period following the Closing Date, Upgrade will use its best efforts to enable the Company to raise up to Two Million Dollars ($2,000,000) (the "Raise"). The Raise may be in either the form of debt or equity securities of the OpCo Credit Bid Amount described Company, in clause Upgrade's sole discretion, provided, however, that the Raise shall not result in dilution to the Shareholders, except as set forth in subsection (i), OpCo Purchaser (iii) below. The Shareholders covenant and agree to cooperate with and to take all actions necessary or appropriate to enable Upgrade to fulfill its Designee(s)) shall (A) deliver, or cause to be delivered, to or at the direction of PropCo Purchaser, a cash payment equal to one million dollars ($1,000,000) to an account designated by Earnout Co. and (B) take the actions contemplated by Section 2.5(b);obligations under this paragraph. (iii) OpCo Purchaser In the event that the Raise is in the form of equity, Upgrade shall (or shall cause have the right, in its Designee to): (A) credit bid the OpCo Credit Bid Amount; (B) deliver, or cause to be deliveredsole discretion, to exchange with the Shareholders, on a pro rata basis, shares of Upgrade to the extent necessary to allow Upgrade to maintain at least a 50% ownership interest in the Company. For purposes of such exchange, shares of the Company t, hall be valued using a cash payment (the “OpCo-Company Closing Date Payment”) equal to: (1) six hundred ninety-two million dollars market capitalization of Five Million Dollars ($692,000,000); plus (25,000,000) and shares of Upgrade shall be valued by averaging the Payoff Amount; plus (3) fifty percent (50%) of closing between the amount (if any) by which Estimated October EBITDA exceeds bid and the Target October EBITDA; less (4) fifty percent (50%) of ask price for the amount (if any) by which Target October EBITDA exceeds Estimated October EBITDA; less (5) the Estimated Closing Cash; less20 trading days immediately prior to such exchange.

Consideration Payment. Subject to any adjustment pursuant to Section 2.7, the aggregate consideration (acollectively, the “Purchase Price”) In order to facilitate be paid by Purchaser for the consummation purchase of the OpCo ClosingAcquired Assets shall be: (y) the assumption of Assumed Liabilities and (z) a cash payment (the “Cash Payment”) of $35,000,000, at (A) plus (in the OpCo Closingevent the Estimated Inventory exceeds the Target Inventory) the amount, if any, by which the following steps Estimated Inventory exceeds the Target Inventory or (B) minus (in the event the Target Inventory exceeds the Estimated Inventory) the amount, if any, by which the Target Inventory exceeds the Estimated Inventory, and (C) minus the Estimated Property Taxes. The Cash Payment shall be deemed allocated among the Acquired Assets as follows (and any post-Closing adjustments to the Purchase Price in respect of Closing Property Taxes shall be allocated to the applicable category of assets set forth below for which any such adjustments relate): (i) $4,500,000 plus or minus (as applicable) 75% of any post-Closing adjustments to the Purchase Price for Closing Inventory pursuant to Section 2.7 shall be deemed to occur be in consideration for the following order: (i) to effect the portion of the Credit Bid with respect to the OpCo Sale, BidCo (or its Designee(s)) shall be deemed to assign to OpCo Purchaser a portion of the Credit Bid Amount (the “OpCo Credit Bid Amount”), which OpCo Credit Bid Amount shall be comprised of a portion of (A) the Term Loan Obligations and First Lien Notes Obligations, and (B) the DIP Obligations, which portions shall be proportionate to the total amount of Term Loan Obligations and First Lien Notes Obligations and DIP Obligations as constitute the total Credit Bid AmountInventory; (ii) as $200,000 shall be deemed to be in consideration for the deemed assignment of the OpCo Credit Bid Amount described in clause (i), OpCo Purchaser (or its Designee(s)) shall (A) deliver, or cause to be delivered, to or at the direction of PropCo Purchaser, a cash payment equal to one million dollars ($1,000,000) to an account designated by Earnout Co. all Intellectual Property and (B) take the actions contemplated by Section 2.5(b)goodwill; (iii) OpCo Purchaser $200,000 shall (or shall cause its Designee to): (A) credit bid be deemed to be in consideration for the OpCo Credit Bid AmountAcquired Owned Real Property located at ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇, ▇▇ ▇▇▇▇▇; (Biv) $200,000 shall be deemed to be in consideration for the Acquired Owned Real Property located at ▇▇▇▇ ▇ ▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇; and (v) the Cash Payment less the amounts set forth in Sections 2.1(a)(i) – At the Closing, Purchaser shall deliver, or cause to be delivered, to the Company, a cash payment Company an amount equal to (the “OpCo-Company Closing Date Payment”) equal to: (1) six hundred ninety-two million dollars ($692,000,000); plus (2i) the Payoff Amount; plus Cash Payment (3increased or decreased, as applicable and for the avoidance of doubt, by the items listed in clauses (A), (B) fifty percent and (50%C) of the amount (if any) by which Estimated October EBITDA exceeds the Target October EBITDA; less (4) fifty percent (50%) of the amount (if any) by which Target October EBITDA exceeds Estimated October EBITDA; less (5) the Estimated Closing Cash; lessSection 2.1(a)(z)), minus

Consideration Payment. The aggregate consideration (acollectively, the “Purchase Price”) In order to facilitate be paid by Purchaser for the consummation purchase of the OpCo Closing, at the OpCo Closing, the following steps Acquired Assets shall be deemed to occur in the following order: be: (i) to effect the portion assumption of the Credit Bid with respect to the OpCo SaleAssumed Liabilities, BidCo and (or its Designee(s)ii) shall be deemed to assign to OpCo Purchaser a portion of the Credit Bid Amount $4 million in cash (the “OpCo Credit Bid AmountCash”), which OpCo Credit Bid Amount shall be comprised of a portion of (A) the Term Loan Obligations and First Lien Notes Obligations, and (Biii) 6,206,897 shares of Purchaser’s unregistered common stock (the DIP Obligations“Equity Interests”). Further, which portions shall be proportionate to the total amount of Term Loan Obligations and First Lien Notes Obligations and DIP Obligations as constitute the total Credit Bid Amount; (ii) as additional consideration for the deemed assignment transactions contemplated hereunder, White Oak or its designee, as the recipient of the OpCo Credit Bid Amount described Equity Interests pursuant to the Sale Order, shall be entitled to appoint an independent director to the Board of Directors of Purchaser in clause accordance with a voting agreement to be entered into by White Oak or its designee and certain stockholders of Purchaser (ithe “Voting Agreement”), OpCo and White Oak or its designee shall have the option to purchase additional shares of Purchaser pursuant to that certain side letter between White Oak or its designee and the Purchaser (or its Designee(sthe “Side Letter”). Promptly, but in any event within fifteen (15) shall (A) deliverdays after the Closing, or cause to be delivered, to or at Purchaser will file with the direction of PropCo Purchaser, SEC a cash payment equal to one million dollars ($1,000,000) to an account designated by Earnout Co. and (B) take resale registration statement for the actions contemplated by Section 2.5(b); shares issued under clause (iii) OpCo above, and will use its reasonable efforts to have such registration statement declared effective as promptly as practicable thereafter. White Oak is an express third-party beneficiary of the foregoing sentence. At the Closing, Purchaser shall (or shall cause its Designee to): (A) credit bid pay the OpCo Credit Bid Amount; (B) deliver, or cause to be delivered, Purchase Price to the Company, a cash payment Sellers and transfer the Equity Interests (the “OpCo-Company Closing Date Payment”) equal to: to White Oak or one or more of its designees and shall assume the Assumed Liabilities. Any payment required to be made in cash pursuant to this or any other provision of this Agreement shall be made in cash by wire transfer of immediately available funds to such bank account as shall be designated in writing by the applicable Party to (1or for the benefit of) six hundred ninety-whom such payment is to be made at least two million dollars ($692,000,000); plus (2) Business Days prior to the Payoff Amount; plus (3) fifty percent (50%) of the amount (if any) by which Estimated October EBITDA exceeds the Target October EBITDA; less (4) fifty percent (50%) of the amount (if any) by which Target October EBITDA exceeds Estimated October EBITDA; less (5) the Estimated Closing Cash; lessdate such payment is to be made.

Consideration Payment. (a) In order Subject to facilitate Section 2.7 below, the consummation consideration for the Seller’s Transfer to the Purchaser of the OpCo Closing, at the OpCo ClosingTransferred Assets, the following steps exclusive license from the Seller to the Purchase of the Licensed Assets and the Seller’s performance of its obligations under this Agreement and the other Acquisition Documents, shall be deemed to occur in equal Three Hundred Fifty Million Dollars ($350,000,000) (the following order“Purchase Price”), payable as follows: (i) to effect At the portion of Closing, the Credit Bid with respect Purchaser shall pay to the OpCo Sale, BidCo (Seller and/or to an Affiliate of Seller as designated by the Seller by wire transfer of immediately available funds to an account or its Designee(s)) shall be deemed to assign to OpCo Purchaser a portion of accounts identified in writing by the Credit Bid Amount (the “OpCo Credit Bid Amount”), which OpCo Credit Bid Amount shall be comprised of a portion of (A) the Term Loan Obligations and First Lien Notes Obligations, and (B) the DIP Obligations, which portions shall be proportionate Seller to the total amount of Term Loan Obligations and First Lien Notes Obligations and DIP Obligations as constitute Purchaser at least two days prior to the total Credit Bid Amount;Closing Date amounts in aggregate equal to Two Hundred Seventy Five Million Dollars ($275,000,000). (ii) as consideration for On the deemed assignment earlier of (i) the first anniversary of the OpCo Credit Bid Amount described in clause Closing Date or (i), OpCo Purchaser (or its Designee(s)ii) shall (A) deliver, or cause to be delivered, to or at the direction occurrence of PropCo a Change of Control of the Purchaser, a cash payment equal the Purchaser shall pay to one million dollars ($1,000,000) the Seller and/or to an Affiliate of Seller as designated by the Seller by wire transfer of immediately available funds to an account designated or accounts identified in writing by Earnout Co. and the Seller to the Purchaser at least two days prior to the Closing Date amounts in aggregate equal to Seventy Five Million Dollars (B) take $75,000,000), as such amount may be adjusted pursuant to the actions contemplated by Section 2.5(bterms of this Agreement (such amount as adjusted, the “Deferred Payment”);. Purchaser shall in no circumstances have the right to set off against the Deferred Payment. (iii) OpCo The Seller, the Purchaser and their Affiliates agree that, for U.S. federal income tax purposes, the Deferred Payment, if paid to Seller, shall (or shall cause its Designee to): (A) credit bid be composed of an interest element and a principal element, the OpCo Credit Bid Amount; (B) deliver, or cause to be delivered, interest element being computed on the principal element at an interest rate equal to the Company, a cash payment (applicable federal rate per annum computed from the “OpCo-Company Closing Date Payment”) equal to: (1) six hundred ninety-two million dollars ($692,000,000); plus (2) to the Payoff Amount; plus (3) fifty percent (50%) date such Deferred Payment is paid to the Seller, and neither the Seller, the Purchaser, nor any of the amount (if any) by which Estimated October EBITDA exceeds the Target October EBITDA; less (4) fifty percent (50%) of the amount (if any) by which Target October EBITDA exceeds Estimated October EBITDA; less (5) the Estimated Closing Cash; lesstheir Affiliates shall take any position on any Tax Return inconsistent therewith.