OR FIRM ACTING ON BEHALF OF SELLER WILL BE ENTITLED TO ANY BROKER'S OR
FINDER'S FEE OR ANY OTHER COMMISSION OR SIMILAR FEE, DIRECTLY OR INDIRECTLY,
FROM SELLER IN CONNECTION WITH THE EXECUTION OF THIS AGREEMENT OR UPON
CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREBY
3.9
EXCLUDED INTEREST. SELLER'S RIGHTS TO DISTRIBUTIONS FROM THE
COMPANY ARE CONTINGENT UPON THE OCCURRENCE OF THOSE EVENTS DESCRIBED IN THE
MEMBER CONTROL AGREEMENT. AS OF THE CLOSING DATE, THE MAXIMUM AGGREGATE AMOUNT
OF DISTRIBUTIONS PAYABLE PURSUANT TO THE $192,500 DISTRIBUTION RIGHT AND
UNRECOVERED COSTS AND RETURN DISTRIBUTION RIGHTS EQUALS $2,357,072. SELLER
ACKNOWLEDGES AND AGREES THAT, OTHER THAN THE RIGHT TO RECEIVE DISTRIBUTIONS FROM
THE COMPANY IN THE MAXIMUM AGGREGATE AMOUNT OF $2,357,072, SUBJECT TO AND IN
ACCORDANCE WITH THE MEMBER CONTROL AGREEMENT, THE EXCLUDED INTEREST DOES NOT
INCLUDE ANY RIGHTS OF ANY KIND WHATSOEVER IN THE COMPANY OR UNDER THE MEMBER
CONTROL AGREEMENT (INCLUDING ANY RIGHTS TO PREFERRED RETURN, AS SUCH TERM IS
DEFINED IN THE MEMBER CONTROL AGREEMENT) OR AS A MEMBER OF THE COMPANY PURSUANT
TO THE MEMBER CONTROL AGREEMENT OR MINNESOTA LAW. SELLER ACKNOWLEDGES AND AGREES
THAT, AFTER THE DATE OF THIS AGREEMENT, SELLER SHALL EARN NO INTEREST ON ANY
AMOUNTS DUE IN CONNECTION WITH THE EXCLUDED INTEREST. SELLER COVENANTS AND
AGREES THAT, FROM AND AFTER THE CLOSING DATE, SELLER SHALL NOT, AND SHALL CAUSE
ITS AFFILIATES, SUCCESSORS AND ASSIGNS NOT TO: (I) MAKE ANY CLAIM FOR ANY
DISTRIBUTIONS OR PAYMENTS FROM THE COMPANY OTHER THAN WITH RESPECT TO THE
EXCLUDED INTEREST AND PAYMENTS DUE UNDER THE CONSULTING AGREEMENT (AS SUCH TERM
IS DEFINED IN THE SETTLEMENT AGREEMENT) OR ANY AGREEMENT ENTERED INTO ON THE
DATE OF THIS AGREEMENT BETWEEN SELLER AND SELLER PARENT, ON ONE HAND, AND BUYER
ON THE OTHER HAND; (II) MAKE ANY CLAIM TO ANY EQUITY INTEREST IN OR RIGHTS AS A
MEMBER OF THE COMPANY, WHETHER PURSUANT TO THE MEMBER CONTROL AGREEMENT,
MINNESOTA LAW OR OTHERWISE; AND (III) MAKE ANY CLAIM AGAINST BUYER WITH RESPECT
TO THE EXCLUDED INTEREST.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER
As an inducement to Seller to enter into and perform this Agreement, Buyer
hereby makes the following representations and warranties to Seller as of the
date hereof:
4.1
STATUS. BUYER IS A DULY FORMED, VALIDLY EXISTING LIMITED LIABILITY
COMPANY IN GOOD STANDING UNDER THE LAWS OF THE STATE OF DELAWARE AND HAS ALL
REQUISITE POWER AND AUTHORITY TO OWN ITS PROPERTIES AND ASSETS AND TO CARRY ON
ITS BUSINESS AS CURRENTLY CONDUCTED.
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4.2
AUTHORITY. BUYER HAS FULL POWER, RIGHT AND AUTHORITY TO EXECUTE
AND DELIVER THIS AGREEMENT, TO PERFORM ITS OBLIGATIONS HEREUNDER AND TO
CONSUMMATE THE TRANSACTIONS CONTEMPLATED HEREBY. BUYER'S EXECUTION, DELIVERY AND
PERFORMANCE OF THIS AGREEMENT AND THE CONSUMMATION BY BUYER OF THE TRANSACTIONS
CONTEMPLATED HEREBY HAVE BEEN DULY AUTHORIZED AND APPROVED BY ALL NECESSARY
ACTION ON THE PART OF BUYER.
4.3
ENFORCEABILITY. THIS AGREEMENT HAS BEEN DULY AND VALIDLY EXECUTED
BY BUYER AND, UPON DELIVERY HEREOF BY BUYER, WILL CONSTITUTE A LEGALLY VALID AND
BINDING OBLIGATION OF