CLAIM OR CAUSE OF
ACTION THAT PURCHASER OR THE COMPANY MAY ASSERT AGAINST SELLER OR ANY OTHER
AFFILIATE OF SELLER ARISING UNDER OR RELATED TO THIS AGREEMENT OR ANY AGREEMENT
ENTERED INTO PURSUANT TO OR IN CONNECTION WITH THIS AGREEMENT.
2.04
ALLOCATION OF PURCHASE PRICE.
COMPANY IS A DISREGARDED ENTITY UNDER
SECTION 7701 OF THE INTERNAL REVENUE CODE, OF 1986 AS AMENDED (THE "CODE").
THIS PURCHASE CONSTITUTES AN ASSET ACQUISITION UNDER CODE SECTION 1060.
THE
PURCHASER AND THE SELLER SHALL ALLOCATE THE PURCHASE PRICE TO THE ASSETS OF THE
COMPANY WITHIN NINETY (90) DAYS AFTER THE CLOSING DATE IN A MANNER CONSISTENT
WITH SECTION 1060 OF THE CODE AND THE TREASURY REGULATIONS THEREUNDER.
PURCHASER SHALL PROVIDE THE INITIAL DRAFT OF THE ALLOCATION.
EACH OF THE
PURCHASER AND THE SELLER AGREES TO FILE INTERNAL REVENUE SERVICE FORM 8594, AND
ALL FEDERAL, STATE, LOCAL AND FOREIGN TAX RETURNS, IN ACCORDANCE WITH SUCH
ALLOCATION.
EACH OF THE PURCHASER AND THE SELLER SHALL REPORT THE TRANSACTION
CONTEMPLATED BY THIS AGREEMENT FOR FEDERAL INCOME TAX AND ALL OTHER TAX PURPOSES
IN A MANNER CONSISTENT WITH THE ALLOCATION DETERMINED PURSUANT TO THIS SECTION
2.04; PROVIDED, HOWEVER, THAT IF THE PARTIES SHOULD FAIL TO AGREE UPON THE
ALLOCATION AS HEREIN DESCRIBED, THEN THE MATTER SHALL BE SUBMITTED TO A
NATIONALLY RECOGNIZED VALUATION FIRM WHOSE DECISION REGARDING THE ALLOCATION
WILL
14
BE BINDING UPON THE PARTIES.
EACH OF THE PURCHASER AND THE SELLER AGREES TO
PROVIDE THE OTHER PROMPTLY WITH ANY OTHER INFORMATION REQUIRED TO COMPLETE FORM
8594.
EACH OF THE PURCHASER AND THE SELLER SHALL NOTIFY AND PROVIDE THE OTHER
WITH REASONABLE ASSISTANCE IN THE EVENT OF AN EXAMINATION, AUDIT OR OTHER
PROCEEDING REGARDING THE AGREED UPON ALLOCATION OF THE PURCHASE PRICE.
ARTICLE III
THE CLOSING
3.01
TIME AND PLACE; EFFECTIVE TIME OF TRANSFER.
(A)
EXCEPT AS PROVIDED BY THE BANKRUPTCY CODE, FEDERAL RULES OF
BANKRUPTCY PROCEDURE, OR ANY ORDER BY THE BANKRUPTCY COURT IN THE BANKRUPTCY
CASE, THE CLOSING OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT WILL TAKE
PLACE AT THE OFFICES OF HISCOCK & BARCLAY, LLP, 50 BEAVER STREET, ALBANY, NEW
YORK
12207-2830 AT 10:00 A.M. LOCAL TIME, ON THE CLOSING DATE (AS HEREINAFTER
DEFINED).
SUBJECT TO SECTION 11.01 HEREOF, THE CLOSING SHALL OCCUR AS SOON AS
PRACTICABLE AFTER THE CONDITIONS SET FORTH IN ARTICLES VII, VIII, IX AND X HAVE
BEEN SATISFIED OR WAIVED, ON A DATE SPECIFIED IN A WRITTEN NOTICE FROM SELLER TO
PURCHASER, GIVEN AT LEAST FIVE DAYS PRIOR TO SUCH DATE (THE "CLOSING DATE"),
PROVIDED, HOWEVER, THAT SUCH DATE SHALL NOT BE SOONER THAN THE PLAN EFFECTIVE
DATE.
(b)
For all purposes, the transfer of the Membership Interest by
Seller to Purchaser pursuant to this Agreement shall be effective at 11:59 P.M.
on the date of Closing.
3.02
DELIVERIES BY SELLER.
AT THE CLOSING, SELLER SHALL DELIVER THE
FOLLOWING TO PURCHASER:
(A)
ASSIGNMENT IN THE FORM OF SCHEDULE 3.02 HERETO DULY EXECUTED BY
SELLER TRANSFERRING THE MEMBERSHIP INTEREST TO PURCHASER;
(B)
A GOOD STANDING CERTIFICATE FOR THE COMPANY FROM