AND ISSUANCE SHALL BE
EFFECTED PURSUANT TO A PLAN CONFIRMED BY THE COMPANY BANKRUPTCY COURT. THE
CLOSING DATE SHALL OCCUR AS PROVIDED IN SECTION 1.2.
1.5
ASSETS AND LIABILITIES.
PURSUANT TO THE PLAN, ON THE EFFECTIVE
DATE OF THE PLAN AND AT THE CONSUMMATION OF THE CLOSING:
(A)
(I) REORGANIZED COMPANY SHALL OWN THE COMPANY ASSETS, FREE AND
CLEAR OF ALL LIENS AND (II) THE COMPANY BANKRUPTCY ESTATE SHALL OWN THE EXCLUDED
ASSETS; AND
(B)
THE ONLY LIABILITIES OF REORGANIZED COMPANY SHALL BE THE ASSUMED
LIABILITIES, AND ALL OTHER LIABILITIES OF THE COMPANY, INCLUDING THE EXCLUDED
LIABILITIES, SHALL BE SOLELY THE OBLIGATION AND LIABILITY OF THE COMPANY
BANKRUPTCY ESTATE.
1.6
TIMING AND INTERPRETATION.
THE PARTIES UNDERSTAND AND AGREE THAT
ANY REFERENCE TO THE COMPANY SHALL, WITH RESPECT TO ANY MATTER DETERMINED AS OF
THE CLOSING, BE DEEMED TO BE A REFERENCE TO REORGANIZED COMPANY AS IF IT WERE
THE SUCCESSOR TO THE COMPANY.
1.7
BUYER CLAIM.
AS PART OF THE CONSIDERATION FOR THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT, THE COMPANY AGREES THAT THE BUYER BANKRUPTCY
ESTATE SHALL HAVE A FINAL, NON-APPEALABLE ORDER, INCLUDING THE WAIVER OF
BANKRUPTCY CODE SECTION 502(J) RECONSIDERATION RIGHTS, GRANTING BUYER AN ALLOWED
GENERAL UNSECURED CLAIM IN THE COMPANY CASE IN AN AMOUNT EQUAL TO $7,300,000
PLUS INTEREST ON SUCH AMOUNT FROM AND AFTER THE COMPANY PETITION DATE TO THE
EXTENT THAT OTHER GENERAL UNSECURED CREDITORS OF THE COMPANY RECEIVE INTEREST
FROM AND AFTER THE COMPANY PETITION DATE PURSUANT TO THE PLAN (THE "BUYER
CLAIM").
THE PARTIES ACKNOWLEDGE AND AGREE THAT THE BUYER CLAIM WILL NOT BE
EFFECTIVE UNLESS AND UNTIL THE CLOSING HAS BEEN CONSUMMATED.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
OF THE COMPANY
The Company hereby represents and warrants to Buyer as follows:
2.1
ORGANIZATION AND GOOD STANDING.
THE COMPANY IS A CORPORATION DULY
ORGANIZED, VALIDLY EXISTING AND IN GOOD STANDING UNDER THE LAWS OF THE STATE OF
MINNESOTA AND HAS THE REQUISITE CORPORATE POWER AND AUTHORITY TO OWN, LEASE AND
OPERATE THE PROPERTIES USED IN ITS BUSINESS AND TO CARRY ON ITS BUSINESS AS
CURRENTLY CONDUCTED AND CURRENTLY CONTEMPLATED TO BE CONDUCTED.
THE COMPANY IS
DULY QUALIFIED TO DO BUSINESS AND IS IN GOOD STANDING AS A FOREIGN CORPORATION
IN THE STATES AND JURISDICTIONS SET FORTH ON SCHEDULE 2.1 AND IN EACH OTHER
JURISDICTION WHERE QUALIFICATION AS A FOREIGN CORPORATION IS REQUIRED.
PRIOR TO
THE DATE OF THIS AGREEMENT, THE COMPANY HAS DELIVERED TO BUYER COMPLETE AND
CORRECT COPIES OF THE ARTICLES OF INCORPORATION, BYLAWS AND OTHER ORGANIZATIONAL
DOCUMENTS OF THE COMPANY, EACH AS PRESENTLY IN EFFECT.
5
2.2
CAPITALIZATION.
(A)
THE AUTHORIZED CAPITAL STOCK OF THE COMPANY CONSISTS OF 10,000
SHARES OF COMMON STOCK.
AS OF THE DATE OF THIS AGREEMENT AND IMMEDIATELY PRIOR
TO THE EQUITY CANCELLATION, THERE ARE 500 SHARES OF COMMON STOCK ISSUED AND
OUTSTANDING, ALL OF WHICH ARE OWNED BY PARENT.
AS OF THE CANCELLATION AND
ISSUANCE, THE NEW SHARES SHALL CONSTITUTE ALL THE ISSUED AND OUTSTANDING SHARES
OF NEW COMMON STOCK OF REORGANIZED COMPANY.
AS OF THE CANCELLATION