THE
2
TRANSFER OF THE ACQUIRED INTEREST FROM SELLER TO BUYER: (I) SUBJECT TO ANY
APPLICABLE REQUIREMENTS OF THE MEMBER CONTROL AGREEMENT, BUYER SHALL BE DEEMED A
SUBSTITUTE MEMBER (AS SUCH TERM IS DEFINED IN THE MEMBER CONTROL AGREEMENT) OF
THE COMPANY; (II) SELLER SHALL BE DEEMED TO HAVE TRANSFERRED ANY AND ALL OF ITS
RIGHTS AS A MEMBER OF THE COMPANY UNDER THE MEMBER CONTROL AGREEMENT AND
MINNESOTA LAW, AND ANY OTHER RIGHT, TITLE AND INTEREST IN THE COMPANY AND UNDER
THE MEMBER CONTROL AGREEMENT OF ANY KIND, INCLUDING AS A MANAGING MEMBER,
PROVIDED, HOWEVER, THAT SELLER SHALL RETAIN ALL OF ITS RIGHTS WITH RESPECT TO
THE EXCLUDED INTERESTS; AND (III) SUBJECT TO ANY APPLICABLE REQUIREMENTS OF THE
MEMBER CONTROL AGREEMENT, BUYER SHALL BE DEEMED A MANAGING MEMBER (AS SUCH TERM
IS DEFINED IN THE MEMBER CONTROL AGREEMENT) OF THE COMPANY FOR ALL PURPOSES AND
IN ALL RESPECTS. IT IS HEREBY ACKNOWLEDGED AND AGREED BY SELLER AND BUYER THAT
UPON COMPLETION OF THE PURCHASE AND SALE CONTEMPLATED BY THIS SECTION 1.1, THE
ACQUIRED INTEREST SHALL BE FREELY ASSIGNABLE AND TRANSFERABLE BY BUYER, FREE AND
CLEAR OF ANY LIEN OR CLAIM OF SELLER OTHER THAN PURSUANT TO SECTION 5.1 OF THIS
AGREEMENT, AND SUBJECT IN ALL EVENTS TO ALL RIGHTS OF THE AGENT UNDER THE PLEDGE
AGREEMENT.
1.2
CONSIDERATION. IN CONSIDERATION FOR THE ACQUIRED INTEREST AND
SUBJECT TO AND UPON THE TERMS AND CONDITIONS OF THIS AGREEMENT, AT THE CLOSING,
BUYER SHALL PAY TO SELLER THE AMOUNT OF $1.00 (THE "PURCHASE PRICE"). THE
PURCHASE PRICE SHALL BE PAYABLE BY BUYER (OR ITS DESIGNEE) TO SELLER AT THE
CLOSING BY WIRE TRANSFER OF IMMEDIATELY AVAILABLE FUNDS TO AN ACCOUNT DESIGNATED
BY SELLER, OR BY CASHIER'S CHECK OR OTHER CASH PAYMENT.
1.3
FULL AND COMPLETE PAYMENT. THE PARTIES ACKNOWLEDGE AND AGREE THAT
THE PAYMENT OF THE PURCHASE PRICE CONSTITUTES FULL AND COMPLETE PAYMENT FOR THE
ACQUIRED INTEREST AND ALL RIGHTS AND ATTRIBUTES RELATED THERETO. EXCEPT FOR THE
PURCHASE PRICE, SELLER SHALL NOT BE ENTITLED TO ANY OTHER RIGHTS, PAYMENTS,
RETURNS AND/OR DIVIDENDS, WHETHER IN CASH OR PROPERTY, FROM THE COMPANY OR ANY
OTHER PERSON OR ENTITY IN RESPECT OF THE ACQUIRED INTEREST OR OTHER INTERESTS IN
OR WITH RESPECT TO THE COMPANY, EXCEPT FOR THE EXCLUDED INTEREST.
1.4
THE CLOSING. THE CLOSING OF THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT (THE "CLOSING") SHALL TAKE PLACE AT THE OFFICES OF LATHAM & WATKINS
LLP, SEARS TOWER, SUITE 5800, CHICAGO, ILLINOIS 60606 ON OCTOBER 19, 2008 OR ON
SUCH OTHER DATE AS IS MUTUALLY AGREEABLE TO SELLER AND BUYER (SUCH DATE, THE
"CLOSING DATE").
ARTICLE II
CONDITIONS TO CLOSING
2.1
CONDITIONS TO BUYER'S OBLIGATIONS. THE OBLIGATION OF BUYER TO
CONSUMMATE THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT IS SUBJECT TO THE
SATISFACTION OF THE FOLLOWING CONDITIONS AS OF THE CLOSING DATE:
(A)
REPRESENTATIONS AND WARRANTIES. THE REPRESENTATIONS AND WARRANTIES
OF SELLER SET FORTH IN ARTICLE III HEREOF SHALL BE TRUE AND CORRECT IN ALL
MATERIAL RESPECTS (EXCEPT FOR ANY REPRESENTATIONS OR WARRANTIES QUALIFIED BY
MATERIALITY,