SELLER ACKNOWLEDGES AND AGREES THAT THE OPTION RIGHT DOES NOT
INCLUDE ANY RIGHTS OF ANY KIND WITH RESPECT TO THE COMPANY OR UNDER THE MEMBER
CONTROL AGREEMENT OR APPLICABLE LAW, OTHER THAN AS EXPRESSLY SET FORTH IN THIS
SECTION 5.1. WITHOUT LIMITING THE GENERALITY OF THE PRECEDING SENTENCE, SELLER
SHALL HAVE NO VOTING, CONTROL OR OTHER RIGHTS AS A MEMBER OF THE COMPANY,
WHETHER UNDER THE MEMBER CONTROL AGREEMENT OR UNDER MINNESOTA LAW, AS A RESULT
OF THIS SECTION 5.1.
(C)
NO LATER THAN THIRTY (30) DAYS PRIOR TO SELLER'S EXERCISE OF THE
OPTION RIGHT, SELLER SHALL DELIVER AN IRREVOCABLE NOTICE PURSUANT TO SECTION 7.5
BELOW, WHICH NOTICE SHALL SET FORTH A DATE FOR CLOSING WHICH SHALL BE DURING THE
OPTION PERIOD.
(D)
IN CONNECTION WITH THE EXERCISE OF THE OPTION RIGHT, SELLER SHALL,
AT THE CLOSING OF THE PURCHASE OF THE ACQUIRED INTEREST: (I) ACQUIRE THE
PARTICIPATION INTEREST BY DELIVERY OF DOCUMENTATION REASONABLY SATISFACTORY TO
BDCF; (II) EXECUTE AND DELIVER A PLEDGE AGREEMENT IN FAVOR OF BDCF, AS AGENT, IN
FORM AND SUBSTANCE SUBSTANTIALLY SIMILAR TO THE PLEDGE AGREEMENT (THE "NEW
PLEDGE AGREEMENT"), TO EFFECT THE GRANTING OF A FIRST LIEN AND SECURITY INTEREST
IN THE ACQUIRED INTEREST TO SECURE ALL OBLIGATIONS OWED UNDER THE CREDIT
AGREEMENT; AND (III) SUBJECT TO ANY APPLICABLE REQUIREMENTS OF THE MEMBER
CONTROL AGREEMENT, ACQUIRE THE ACQUIRED INTEREST AT A PURCHASE PRICE OF $1.00.
(E)
IN CONNECTION WITH THE EXERCISE OF THE OPTION RIGHT, BDCF SHALL
DELIVER TO SELLER AT CLOSING, SUBJECT TO THE NEW PLEDGE AGREEMENT, A MEMBERSHIP
CERTIFICATE EVIDENCING THE MEMBERSHIP INTEREST, ACCOMPANIED BY AN ASSIGNMENT AND
ACCEPTANCE DOCUMENT, SUBSTANTIALLY IN THE FORM ATTACHED HERETO AS EXHIBIT A,
DULY EXECUTED BY BDCF AND, SUBJECT TO ANY APPLICABLE REQUIREMENTS OF THE MEMBER
CONTROL AGREEMENT, EFFECTING THE ASSIGNMENT AND TRANSFER OF THE ACQUIRED
INTEREST TO SELLER. IN CONNECTION WITH THE TRANSFER BY BDCF OF THE ACQUIRED
INTEREST TO SELLER PURSUANT TO THE EXERCISE OF THE OPTION RIGHT, BDCF SHALL NOT
BE REQUIRED TO MAKE ANY REPRESENTATIONS OR WARRANTIES TO SELLER IN CONNECTION
WITH SUCH TRANSFER, EXCEPT AS TO (I) GOOD AND VALID TITLE TO THE ACQUIRED
INTEREST BEING TRANSFERRED TO SELLER; (II) ITS VALID EXISTENCE AND GOOD STANDING
(IF APPLICABLE); (III) THE LEGAL CAPACITY AND AUTHORITY FOR, AND VALIDITY,
BINDING EFFECT AND ENFORCEABILITY OF (AS AGAINST BDCF), ANY AGREEMENT ENTERED
INTO BY BDCF IN CONNECTION WITH THE TRANSFER OF THE ACQUIRED INTEREST; AND
(IV) THE FACT THAT NO BROKER'S COMMISSION OR FINDER'S FEE IS PAYABLE BY BDCF AS
A RESULT OF BDCF'S CONDUCT IN CONNECTION WITH THE TRANSFER OF THE ACQUIRED
INTEREST PURSUANT TO THIS ARTICLE V. THE ACQUIRED INTEREST SHALL AT ALL TIMES
REMAIN SUBJECT TO RIGHTS OF THE AGENT PURSUANT TO THE NEW PLEDGE AGREEMENT.
(F)
THE OPTION RIGHT SET FORTH IN THIS SECTION 5.1 SHALL EXPIRE IF
THE CLOSING OF THE ACQUISITION OF THE ACQUIRED INTEREST DOES NOT OCCUR DURING
THE OPTION PERIOD, EXCEPT IF SUCH FAILURE TO CLOSE IS DUE TO BCDF'S UNREASONABLE
DELAY OR FAILURE TO COMPLY WITH THE