AMENDED AND RESTATED ASSET PURCHASE AGREEMENT

Exhibit 2.2 ^*

E XECUTION V ERSION

 

A MENDED AND R ESTATED A SSET P URCHASE A GREEMENT

D ATED AS OF April 24, 2009

BY AND AMONG

RBF A CQUISITION VIII, LLC,

AND

US B IO E NERGY C ORPORATION

 

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In accordance with Item 601(b)(2) of Regulation S-K, the schedules and similar attachments to the asset purchase agreement in this exhibit, which schedules and similar attachments are listed in the table of contents of the asset purchase agreement, have not been filed. The registrant agrees to furnish a copy of any omitted schedule or similar attachment to the SEC upon request.

T ABLE OF C ONTENTS

 

 

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A SSET P URCHASE A GREEMENT

T HIS A MENDED AND R ESTATED A SSET P URCHASE A GREEMENT (this “ Agreement ”) is made as of April 24, 2009 (the “ Effective Date ”), by and among RBF Acquisition VIII, LLC , a Delaware limited liability company (“ Buyer ”), and US BioEnergy Corporation , a South Dakota corporation (“ Seller ”), amends and restates that Asset Purchase Agreement, dated as of April 2, 2009, by and among Buyer and Seller. Capitalized terms used herein and not otherwise defined herein have the meanings set forth in Article 1 .

R ECITALS

W HEREAS , on October 31, 2008 (the “ Petition Date ”), Seller filed a voluntary petition for relief (the “ Filing ”) commencing a case under chapter 11 of the Bankruptcy Code in the United States Bankruptcy Court for the District of Delaware (the “ Bankruptcy Court ”);

W HEREAS , pursuant to that certain Postpetition Continuing Guaranty, dated as of January 14, 2009, Seller has guaranteed the obligations of VeraSun Albert City, LLC, VeraSun Central City, LLC, VeraSun Dyersville, LLC, VeraSun Hankinson, LLC, VeraSun Janesville, LLC, VeraSun Ord, LLC and VeraSun Woodbury, LLC (together, the “ VeraSun Subs ”) to the DIP Lender under each DIP Credit Agreement to which such VeraSun Sub is a party;

W HEREAS , Seller desires to sell to Buyer all of the Acquired Assets, and Buyer desires to purchase from Seller all of the Acquired Assets and assume all of the Assumed Liabilities, upon the terms and conditions hereinafter set forth;

W HEREAS , the Parties intend to effectuate the transactions contemplated by this Agreement through a sale of the Acquired Assets pursuant to Sections 363 and 365 of the Bankruptcy Code; and

W HEREAS , the execution and delivery of this Agreement and the Seller’s ability to consummate the transactions set forth in this Agreement are subject to, among other things, the entry of an Order of the Bankruptcy Court under, inter alia , Sections 363 and 365 of the Bankruptcy Code.

N OW , T HEREFORE , in consideration of the premises and the mutual promises herein made, and in consideration of the representations, warranties and covenants herein contained, the Parties agree as follows:

ARTICLE 1

DEFINITIONS

1.1 Definitions .

For purposes of this Agreement, the following terms have the meanings specified or referenced below.

“ Accounts Receivable ” means, with respect to Seller, all accounts receivable, trade accounts and other rights to payment (including overdue accounts receivable) arising in connection with the sale of goods or the rendering of services by Seller (or a predecessor) and the full benefit of all security for such accounts receivable, trade accounts or rights to payment (including overdue accounts receivable), including any other miscellaneous accounts receivable of Seller (or a predecessor), and any claim, remedy or other right of Seller (or a predecessor) related to any of the foregoing.

“ Acquired Assets ” has the meaning set forth in Section 2.1(b) .

“ Action ” means any legal action, suit or arbitration, or any inquiry, proceeding (including any civil, criminal, administrative or appellate proceeding), hearing, audit or investigation, brought, conducted or heard by or before any court or other Governmental Authority.

“ Affiliate ” of any particular Person means any other Person or Persons controlling, controlled by, or under common control with such particular Person, where “ control ” means the possession, directly or indirectly, of the power to direct the management and policies of a Person whether through the ownership of voting securities, contract, or otherwise.

“ Agreement ” has the meaning set forth in the introductory paragraph.

“ Allocation Arbiter ” has the meaning set forth in Section 3.3 .

“ Allocation Schedule(s) ” has the meaning set forth in Section 3.3 .

“ Assigned Contracts ” means (i) the Contracts listed or described in Schedule 1.1(a) (as amended prior to the Initial Closing in accordance with Section 2.3(b) , or as otherwise amended by Buyer prior to the Initial Closing to add Contracts in its sole discretion; provided , however , that the Cure Costs associated with any such Contracts added by Buyer to Schedule 1.1(a) after the Effective Date shall not be included for purposes of calculating the Cure Cost Limit in accordance with Section 2.3(b) ) and (ii) any Contracts that arise in the ordinary course of business after the date hereof and are entered into in accordance with Section 7.2 .

“ Assumed Liabilities ” has the meaning set forth in Section 2.3 .

“ Avoidance Actions ” means any and all claims for relief of Seller under chapter 5 of the Bankruptcy Code.

“ Bankruptcy Case ” means the cases commenced by Seller under chapter 11 of the Bankruptcy Code in the Bankruptcy Court, styled In re VeraSun Energy Corporation, et al. , jointly administered under Case No. 08-12606 (BLS), and pending before the Bankruptcy Court.

“ Bankruptcy Court ” has the meaning set forth in the recitals.

“ Bankruptcy Code ” means Title 11 of the United States Code, Sections 101 et seq .

“ Bidding Procedures ” means the bid procedures approved by the Bankruptcy Court pursuant to the Bidding Procedures Order.

“ Bidding Procedures Order ” means the Order of the Bankruptcy Court styled “Order Pursuant to 11 U.S.C. §§ 105(A), 363, 365 and Fed. R. Bankr. P. 2002, 6004, 6006 (A) Establishing Bidding and Auction Procedures Related to the Sale of Some or All of the Debtors’ Assets; (B) Approving Bid Protections for Sale of VSE Assets; (C) Establishing Procedures for the Debtors to Enter into Additional Stalking Horse Agreements with Bid Protections in Connection with Sale of Assets; (D) Scheduling an Auction and Sale Hearing for the Sale of the Debtors’ Assets; (E) Permitting Credit Bidding Pursuant to Bankruptcy Code Section 363(K); (F) Establishing Certain Notice Procedures for Determining Cure Amounts; (G) Approving Form and Manner of Notice of All Procedures, Protections, Schedules and Agreements; and (H) Granting Certain Related Relief” and entered on February 20, 2009 (Docket No. 699 in the Bankruptcy Case).

 

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“ Big River ” means Big River Resources Grinnell, LLC, an Iowa limited liability company.

“ Big River Closing ” has the meaning set forth in Section 4.1(b) .

“ Big River Closing Date ” means the date and time as of which the Big River Closing occurs as set forth in Section 4.1(b) .

“ Big River Credit Bid and Release ” has the meaning set forth in Section 3.1(a)(ii) .

“ Big River Interests ” has the meaning set forth in Section 2.1(b) .

“ Big River Operating Agreement ” means the Operating Agreement of Big River.

“ Bill of Sale ” means the bill of sale substantially in the form attached hereto as Exhibit A .

“ Business Day ” means any day of the year on which national banking institutions in New York are open to the public for conducting business and are not required or authorized by law to close.

“ Buyer ” has the meaning set forth in the introductory paragraph.

“ Code ” means the Internal Revenue Code of 1986, as amended.

“ Contract ” means any agreement, contract, obligation, promise, license, note, lease or undertaking (whether written or oral) that is legally binding.

“ Copyrights ” means all United States and foreign copyright rights in any original works of authorship, whether registered or unregistered, including all copyright registrations and applications.

“ Credit Bid and Release ” has the meaning set forth in Section 3.1(a)(ii) .

“ Cure Costs ” means amounts that must be paid pursuant to Section 365(b)(1)(A) and (B) of the Bankruptcy Code, to cure all monetary defaults under the Assigned Contracts as set forth in the Sale Order.

“ Cure Costs Limit ” has the meaning set forth in Section 2.3(b) .

“ Deed ” means the deed transferring title to the Owned Real Property to be delivered pursuant to Section 4.3(a)(i) .

“ DIP Credit Agreements ” means, collectively, those certain seven (7) final debtor-in-possession financing orders entered by the Bankruptcy Court on February 10, 2009, separately authorizing the VeraSun Subs to use cash collateral and obtain secured post-petition financing and authorizing Seller to enter into a post-petition continuing guaranty under which Seller would guarantee each of the VeraSun Subs’ obligations incurred under its corresponding post-petition financing agreements, dated as of January 14, 2009, by and among each VeraSun Sub and the DIP Lender.

“ DIP Lender ” means AgStar Financial Services, PCA.

“ Documents ” means all books, records, files, invoices, quality control records and manuals, records and laboratory books, plans, specifications, studies, surveys, maps, drawings, analysis, reports, ownership and operating manuals and correspondence with Governmental Authorities (including all data and other information stored on discs, tapes or other media).

 

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“ Effective Date ” has the meaning set forth in the introductory paragraph.

“ Encumbrance ” means any charge, lien, claim, mortgage, lease, sublease, hypothecation, deed of trust, pledge, security interest, option, right of use or possession, right of first offer or first refusal, easement, servitude, restrictive covenant, encroachment, encumbrance, judgment, conditional sale or other similar restriction of any kind or nature.

“ Environmental, Health and Safety Laws ” has the meaning set forth in Section 5.5(a) .

“ Equipment ” means all furniture, trade fixtures, equipment, computers, machinery, vehicles, apparatus, appliances, implements, signage, supplies and all other tangible personal property of every kind and description owned by Seller, including spare parts.

“ Excluded Assets ” has the meaning set forth in Section 2.2 .

“ Excluded Liabilities ” has the meaning set forth in Section 2.4 .

“ Filing ” has the meanings set forth in the recitals.

“ Final Order ” means an action taken or order issued by the applicable Governmental Authority as to which no stay of the action or order is in effect.

“ Governmental Authority ” means any United States federal, state or local or any foreign government, governmental authority or regulatory or administrative authority or any court, tribunal or judicial body having jurisdiction.

“ Governmental Authorization ” means any approval, consent, license, permit, waiver or other authorization issued, granted or otherwise made available by or under the authority of any Governmental Authority.

“ Hazardous Substance ” means any “pollutant,” “contaminant,” “hazardous waste,” “hazardous material” or “hazardous substance” under any Environmental, Health and Safety Laws.

“ Initial Closing ” has the meaning set forth in Section 4.1 (a) .

“ Initial Closing Date ” means the date and time as of which the Initial Closing occurs as set forth in Section 4.1(a) .

“ Initial Credit Bid and Release ” has the meaning set forth in Section 3.1(b)(ii)

“ Intellectual Property ” means, with respect to Seller, all intellectual property and proprietary rights of any kind, including the following: (i) Trademarks; (ii) Patents; (iii) Copyrights; (iv) Trade Secrets; (v) computer software, computer programs, and databases (whether in source code, object code or other form); and (vi) all rights to sue for past, present and future infringement, misappropriation, dilution or other violation of any of the foregoing and all remedies at law or equity associated therewith.

“ Knowledge ” means, with respect to any matter in question, in the case of Seller, the actual knowledge of any of the individuals listed on Schedule 1.1(a) with respect to such matter, including facts of which such individuals should be aware in the reasonable prudent exercise of their duties and after due inquiry.

 

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“ Legal Requirement ” means any federal, state, provincial, local, municipal, foreign, international, multinational, or other administrative Order, constitution, law, ordinance, principle of common law, regulation, statute or treaty.

“ Liability ” means any debt, losses, claim, damage, demand, fine, judgment, penalty, liability or obligation (whether known or unknown, asserted or unasserted, absolute or contingent, accrued or unaccrued, liquidated or unliquidated, or due or to become due).

“ Marion ” means US Bio Marion, LLC, a South Dakota limited liability company.

“ Material Adverse Effect ” means a material adverse change in or material adverse effect on the Acquired Assets (excluding the Excluded Assets and the Excluded Liabilities), in each case taken as a whole, but excluding (a) any change or effect to the extent that it results from or arises out of (i) the Filing; (ii) the execution and delivery of this Agreement or the announcement thereof or the pendency or consummation of the transactions contemplated hereby; (iii) geopolitical conditions or any outbreak or escalation of hostilities or acts of terrorism or war; (iv) any hurricane, tornado, flood, earthquake or other natural disaster; (v) changes in (or proposals to change) Legal Requirements or accounting regulations or principles; (vi) any action contemplated by this Agreement or taken at the request of Buyer; (vii) changes in prices or costs of commodities or supplies; (viii) failure of Seller to meet any internal or published projections, forecasts, estimates or predictions in respect of financial or operating metrics; or (ix) any motion, application, pleading or Order filed under or in connection with the Bankruptcy Case; and (b) any change or effect generally applicable to (i) the industries and markets in which Seller operates or (ii) economic or political conditions or the securities or financial markets in any country or region.

“ Order ” means any award, writ, injunction, judgment, order or decree entered, issued, made, or rendered by any Governmental Authority.

“ Other Acquired Assets ” has the meaning set forth in Section 2.1(a) .

“ Owned Real Property ” has the meaning set forth in Section 5.4(a) .

“ Party ” or “ Parties ” means, individually or collectively, Buyer and Seller.

“ Patents ” means United States and foreign patents and patent applications, as well as any continuations, continuations-in-part, divisions, extensions, reexaminations, reissues, renewals and patent disclosures related thereto.

“ Periodic Taxes ” has the meaning set forth in Section 8.1(b) .

“ Permits ” means all franchises, grants, authorizations, licenses, permits, easements, variances, exceptions, consents, certificates, approvals, clearances and Orders.

“ Permitted Encumbrances ” means: (i) easements, leases, reservations, or other rights of others in, or minor defects and irregularities in title that do not materially impair the use of, the encumbered property or assets for the purposes for which they are held; (ii) any Encumbrance or privilege vested in any lessor, licensor or permittor for rent or other obligations solely related to the period after the (x) Big River Closing with respect to the Big River Interests and (y) Initial Closing with respect to the Other Acquired Assets; (iii) licenses of or other grants of rights to use Intellectual Property entered into in the ordinary course of business that do not materially impair the ownership or use of the Acquired Assets, (iv) Encumbrances, title exceptions or other imperfections of title caused by or resulting from the acts of

 

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Buyer or any of its Affiliates, employees, officers, directors, agents, contractors, invitees or licensees; (v) liens for Taxes not yet due and payable; and (v) Encumbrances set forth on Schedule 1.1(c) .

“ Person ” means any individual, corporation (including any non-profit corporation), partnership, limited liability company, joint venture, estate, trust, association, organization or other entity or Governmental Authority.

“ Petition Date ” has the meaning set forth in the recitals.

“ Pre-Paid Expenses ” means all deposits and prepaid charges and expenses of Seller as of the Initial Closing Date, including (i) security deposits with third party suppliers, vendors or service providers, ad valorem taxes and lease and rental payments (other than in connection with any Excluded Assets), (ii) rebates, (iii) refunds, (iv) tenant reimbursements and (v) pre-payments, and in each case, the rights thereto.

“ Proceeding ” means any action, arbitration, audit, hearing, investigation, litigation, or suit (whether civil, criminal, administrative or investigative) commenced, brought, conducted, or heard by or before, or otherwise involving, any Governmental Authority.

“ Purchase Price ” has the meaning set forth in Section 3.1 .

“ Real Property ” means the Owned Real Property listed or described on Schedule 2.1(a)(i) .

“ Release ” means any past or present spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping or disposing of a Hazardous Substance into the environment.

“ Representative ” means, with respect to a particular Person, any director, officer, employee, agent, consultant, advisor or other representative of such Person, including legal counsel, accountants and financial advisors.

“ ROFR ” has the meaning set forth in Section 7.7 .

“ Sale Motion ” means the motion styled “Motion Pursuant to 11 U.S.C. §§ 105(a), 363, 365 and Fed. R. Bankr. P. 2002, 6004, 6006 for (I) Entry of an Order (A) Establishing Bidding and Auction Procedures Related to the Sale of Some or All of the Debtors’ Assets; (B) Approving Bid Protections for Sale of VSE Assets; (C) Establishing Procedures for the Debtors to Enter into Additional Stalking Horse Agreements with Bid Protections in Connection with Sale of Assets; (D) Scheduling an Auction and Sale Hearing for the Sale of the Debtors’ Assets; (E) Permitting Credit Bidding Pursuant to Bankruptcy Code Section 363(K); (F) Establishing Certain Notice Procedures for Determining Cure Amounts; (G) Approving Form and Manner of Notice of All Procedures, Protections, Schedules and Agreements; and (H) Granting Certain Related Relief; and (II) Entry of an Order (A) Approving the Sale of Debtors’ Assets Free and Clear of All Liens, Claims, Encumbrances and Interests; (B) Authorizing the Assumption and Assignment of Certain Executory Contracts and Unexpired Leases; and (C) Granting Certain Related Relief” and filed with the Bankruptcy Court on February 6, 2009 (Docket No. 622 in the Bankruptcy Case).

“ Sale Order ” means an Order of the Bankruptcy Court approving this Agreement and the transactions contemplated hereby.

“ Seller ” has the meaning set forth in the introductory paragraph.

 

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“ Successful Bidder ” has the meaning set forth in the Bidding Procedures.

“ Tax ” or “ Taxes ” (and with correlative meaning, “ Taxable ” and “ Taxing ”) means (i) any federal, state, provincial, local, foreign or other income, alternative, minimum, add-on minimum, accumulated earnings, personal holding company, franchise, capital stock, net worth, capital, profits, intangibles, windfall profits, gross receipts, value added, sales, use, goods and services, excise, customs duties, transfer, conveyance, mortgage, registration, stamp, documentary, recording, premium, severance, environmental (including taxes under Section 59A of the Code), natural resources, real property, personal property, ad valorem, intangibles, rent, occupancy, license, occupational, employment, unemployment insurance, social security, disability, workers’ compensation, payroll, health care, withholding, estimated or other similar tax, duty, levy or other governmental charge or assessment or deficiency thereof (including all interest and penalties thereon and additions thereto whether disputed or not) and (ii) any transferee or successor liability (by law, Contract or otherwise) in respect of any items described in clause (i) above.

“ Tax Refunds ” has the meaning set forth in Section 2.1(a)(x) .

“ Tax Return ” means any return, declaration, report, claim for refund, information return or other document (including any related or supporting estimates, elections, schedules, statements, or information) filed or required to be filed in connection with the determination, assessment or collection of any Tax or the administration of any laws, regulations or administrative requirements relating to any Tax.

“ Trademarks ” means United States, state and foreign trademarks, service marks, logos, slogans, trade dress and trade names, Internet domain names and any other similar designations of source of goods or services, whether registered or unregistered, and registrations and pending applications to register the foregoing, and all goodwill related to or symbolized by the foregoing.

“ Trade Secrets ” means trade secrets and other confidential and proprietary business information (including confidential and proprietary manufacturing and production processes and techniques, research and development information, technology, drawings, specifications, designs, plans, proposals, technical data, financial, marketing and business data, pricing and cost information, business and marketing plans, customer and supplier lists and information), know how, proprietary processes, formulae, algorithms, models, and methodologies.

“ Transaction Documents ” means this Agreement and any other agreements, instruments or documents entered into pursuant to this Agreement.

“ Transfer Taxes ” has the meaning set forth in Section 8.1(a) .

“ Treasury Regulations ” means the regulations promulgated by the U.S. Treasury Department pursuant to the Code.

“ VeraSun Subs ” has the meaning set forth in the Recitals.

“ WARN Act ” means the Worker Adjustment and Retraining Notification Act of 1988, as amended, any similar Legal Requirement, and the rules and regulations thereunder.

1.2 Other Definitions and Interpretive Matters .

(a) Unless otherwise expressly provided, for purposes of this Agreement, the following rules of interpretation shall apply:

 

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(i) Calculation of Time Period . When calculating the period of time before which, within which or following which any act is to be done or step taken pursuant to this Agreement, the date that is the reference date in calculating such period shall be excluded. If the last day of such period is a day other than a Business Day, the period in question shall end on the next succeeding Business Day.

(ii) Dollars . Any reference in this Agreement to $ means U.S. dollars.

(iii) Exhibits/Schedules . All Exhibits and Schedules attached or annexed hereto or referred to herein are hereby incorporated in and made a part of this Agreement as if set forth in full herein. Any capitalized terms used in any Schedule or Exhibit but not otherwise defined therein shall be defined as set forth in this Agreement.

(iv) Gender and Number . Any reference in this Agreement to gender includes all genders, and words imparting the singular number only include the plural and vice versa.

(v) Headings . The provision of a table of contents, the division of this Agreement into Articles, Sections and other subdivisions and the insertion of headings are for convenience of reference only and shall not affect or be utilized in the construction or interpretation of this Agreement. All references in this Agreement to any “ Section ” or “ Article ” are to the corresponding Section or Article of this Agreement unless otherwise specified.

(vi) Herein . Words such as “ herein ,” “ hereof ” and “ hereunder ” refer to this Agreement as a whole and not merely to a subdivision in which such words appear, unless the context otherwise requires.

(vii) Including . The word “ including ” or any variation thereof means “ including, without limitation, ” and shall not be construed to limit any general statement that it follows to the specific or similar items or matters immediately following it.

(b) No Strict Construction. Buyer and Seller participated jointly in the negotiation and drafting of this Agreement, and, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as jointly drafted by Buyer and Seller and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any provision of this Agreement. Without limitation as to the foregoing, no rule of strict construction construing ambiguities against the draftsperson shall be applied against any Person with respect to this Agreement.

ARTICLE 2

PURCHASE AND SALE

2.1 Purchase and Sale .

(a) Upon the terms and subject to the conditions of this Agreement, on the Initial Closing Date, Seller shall sell, transfer, assign, convey and deliver, or cause to be sold, transferred, assigned, conveyed and delivered, to Buyer, and Buyer shall purchase, free and clear of all Encumbrances (other than Permitted Encumbrances), all right, title and interest of Seller in, to or under all of the properties and assets of Seller (other than the Excluded Assets) of every kind and description, wherever located, real, personal, mixed, tangible or intangible, as the same shall exist on the Initial Closing Date,

 

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including all right, title and interest of Seller in, to or under the following (collectively, the “ Other Acquired Assets ”):

(i) Equipment;

(ii) the Assigned Contracts;

(iii) the Owned Real Property;

(iv) all cash and cash equivalents of Seller, including checks, commercial paper, treasury bills, certificates of deposit amounts held in escrow for the benefit of Seller, and other bank deposits;

(v) all Permits and pending applications therefor, in each case, exclusively related to the Other Acquired Assets specified in Section 2.1(a)(iii) ;

(vi) all Intellectual Property other than Intellectual Property included in the Excluded Assets;

(vii) the Pre-Paid Expenses;

(viii) all Accounts Receivable;

(ix) all rights, claims, credits, causes of action or rights of set off against Persons other than Seller relating to the Other Acquired Assets (including, for the avoidance of doubt, those arising under, or otherwise relating to, the Assigned Contracts) or Assumed Liabilities, including rights under vendors’ and manufacturers’ warranties, indemnities, guaranties other than (A) Avoidance Actions and (B) other avoidance claims and causes of action under applicable state law;

(x) any claim, right or interest of Seller in or to any refund, rebate, abatement or other recovery for Taxes not already received or utilized (collectively, “ Tax Refunds ”) payable to Seller, together with any interest due thereon or penalty rebate arising therefrom, for any Tax period (or portion thereof) ending on or before the Initial Closing Date; provided , that Buyer shall at its own cost be responsible for obtaining, and Seller shall cooperate in good faith in obtaining, all such Tax Refunds;

(xi) any counterclaims, setoffs or defenses that Seller may have with respect to any Assumed Liabilities;

(xii) to the extent assignable, any bonds, obligations or other instruments of indebtedness owed to Seller;

(xiii) to the extent assignable or transferable in accordance with the terms and conditions of the applicable insurance policies, applicable law or the Sale Order, (i) all of Seller’s insurance policies and rights and benefits thereunder (including, without limitation, (A) all rights pursuant to and proceeds from such insurance policies, including unearned premiums, and (B) all claims, demands, proceedings and causes of action asserted by Seller under such insurance policies) and (ii) any letters of credit related thereto; and

 

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(xiv) to the extent available and permitted by applicable Legal Requirements, all Documents that relate primarily to any of the Other Acquired Assets specified in Section 2.1(a)(i) through Section 2.1(a)(xiii) , provided that Seller may retain one copy of such Documents.

(b) Upon the terms and subject to the conditions of this Agreement, including Section 7.7 , on the Big River Closing Date, Seller shall sell, transfer, assign, convey and deliver, or cause to be sold, transferred, assigned, conveyed and delivered, to Buyer, and Buyer shall purchase, free and clear of all Encumbrances (other than Permitted Encumbrances), all right, title and interest of Seller in, to or under the following (the “ Big River Interests ” and together with the Other Acquired Assets, the “ Acquired Assets ”):

(i) all Interests (as such term is defined in the Big River Operating Agreement) in Big River and all rights with respect thereto, as the same shall exist on the Big River Closing Date;

(ii) all proceeds resulting from a sale of the Big River Interests to the other Member (as such term is defined in the Big River Operating Agreement) or Big River in accordance with the terms of the Big River Operating Agreement; and

(iii) to the extent available and permitted by applicable Legal Requirements, all Documents that relate primarily to the Big River Interests specified in Sections 2.1(b)(i) and Section 2.1(b)(ii) , provided that Seller may retain one copy of such Documents.

2.2 Excluded Assets . The Acquired Assets shall not include any of the following (collectively, the “ Excluded Assets ”):

(a) the Purchase Price delivered to Seller pursuant to this Agreement;

(b) any shares of capital stock or other equity interest of any VeraSun Sub or Marion or any securities convertible into, exchangeable or exercisable for shares of capital stock or other equity interest of any VeraSun Sub or Marion;

(c) any properties or assets of any VeraSun Sub or Marion;

(d) all minute books, stock ledgers, corporate seals and stock certificates of Seller;

(e) the intellectual property listed or described on Schedule 2.2(e) ;

(f) any Trade Secrets;

(g) the Executive Liability and Entity Securities Liability Policy issued by Federal Insurance Company (Chubb) to VeraSun Energy Corporation, Policy Number 6804-6508 and the Excess Executive Liability Policies issued by St. Paul Mercury Insurance Company (Travelers), Policy Number EC06900746; National Union Fire Insurance Company of Pittsburgh, PA (AIG), Policy Number 00-600-06-79; Underwriters at Lloyd’s, London, Policy Number B066465107A08; and Old Republic Insurance Company, Policy Number CUG 32421 to VeraSun Energy Corporation, including any and all claims, demands, proceedings and causes of action asserted by Seller under such insurance policies;

(h) any Contract that is not an Assigned Contract;

 

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(i) all Permits and pending applications therefor other than those specified in Section 2.1(a)(v) ;

(j) any Avoidance Actions; and

(k) any rights, claims or causes of action of Seller under this Agreement or any other Transaction Document.

2.3 Assumed Liabilities . Upon the terms and subject to the conditions of this Agreement, on the Initial Closing Date, Buyer shall assume and agree to discharge, when due (in accordance with their respective terms and subject to the respective conditions thereof), only the following Liabilities (collectively, the “ Assumed Liabilities ”) and no others.

(a) all Liabilities under the Assigned Contracts relating to events or circumstances first arising and accruing after the Initial Closing Date, other than those described in Section 2.3(b) ;

(b) all Cure Costs; provided , however , that in the event the Parties determine after the Effective Date and prior to the Initial Closing that the Cure Costs of the Assigned Contracts set forth on Schedule 1.1(a) on the Effective Date exceed $50,000 in the aggregate (the “ Cure Costs Limit ”), Buyer may amend Schedule 1.1(a) to remove one or more Contracts listed thereon in order to reduce Buyer’s aggregate Liability under this Section 2.3(b) by an amount such that the Cure Costs of the Contracts on Schedule 1.1(a) , as amended, are as close to as reasonably practicable, but not in excess of, the Cure Cost Limit; and

(c) Sellers’ Liability for Taxes to the extent provided in Section 8.1 .

2.4 Excluded Liabilities . Notwithstanding any provision in this Agreement to the contrary, Buyer shall not assume and shall not be obligated to assume or be obliged to pay, perform or otherwise discharge any Liability of Seller, and Seller shall be solely and exclusively liable with respect to all Liabilities of Seller, other than the Assumed Liabilities (such Liabilities other than Assumed Liabilities, collectively, the “ Excluded Liabilities ”), including the following Liabilities:

(a) all Liabilities of Seller relating to or otherwise arising, whether before, on or after the Big River Closing, out of, or in connection with the Excluded Assets;

(b) other than the Liabilities described in Section 2.3(b) , all Liabilities under each Assigned Contract to the extent based on facts and circumstances arising or accruing on or prior to the Initial Closing Date;

(c) any and all Liabilities relating to any environmental, health or safety matter (including any Liability or obligation under any Environmental Law), arising out of or relating to Seller’s leasing, ownership or operation of real property on or prior to the Initial Closing Date (or with respect to Liabilities relating to any environmental, health or safety matter (including any Liability or obligation under any Environmental Law), arising out of or relating to Seller’s leasing, ownership or operation of real property relating solely to the Big River Interests, on or prior to the Big River Closing Date) no matter when raised;

(d) all Liabilities relating to noncompliance with Permits, Governmental Authorizations, Environmental Health and Safety Laws, and other Legal Requirements that occurred on or before the Initial Closing (or with respect to other Liabilities relating to noncompliance with Permits,

 

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Governmental Authorizations, Environmental Health and Safety Laws, and other Legal Requirements relating solely to the Big River Interests, that occurred on or before the Big River Closing Date);

(e) any indebtedness for borrowed money of Seller and all guarantees of third party obligations by Seller and reimbursement obligations to guarantors of Seller’s obligations under letters of credit;

(f) except to the extent that the Liabilities are assumed pursuant to Section 2.3 , all Taxes imposed on Seller regardless of whether attributable to a taxable period ending prior to, on or after the Initial Closing Date;

(g) all Liabilities of Seller to any former or current employee, including (i) for salary, wages, commissions, bonus, severance, vacation pay, holiday pay and any other employee payroll obligations (including accrued payroll Taxes); arising out of acts or omissions with respect to any benefit plan, employee practices or programs, including employee claims of wrongful discharge or discrimination, (ii) severance liabilities, (iii) obligations of Seller under employment contracts, (iv) any change of control amounts payable to any employees as a result of the transactions contemplated by this Agreement, and (v) all Liabilities that may arise under the WARN Act as a result of the transactions contemplated in this Agreement, including all such Liabilities to any employee of Seller;

(h) drafts or checks outstanding at the Initial Closing Date;

(i) obligations under any futures contracts, options on futures, swap agreements or forward sale agreements entered into by Seller; and

(j) except to the extent that the Liabilities are assumed pursuant to Section 2.3 , any other Liabilities arising out of or in connection with events occurring prior to the Initial Closing Date (or with respect to other Liabilities relating solely to the Big River Interests, arising out of or in connection with events occurring prior to the Big River Closing Date), regardless of when raised.

2.5 Assignments; Cure Costs .

(a) Seller shall transfer and assign all Assigned Contracts to Buyer, and Buyer shall assume all Assigned Contracts from Seller, as of the Initial Closing Date pursuant to Section 365 of the Bankruptcy Code and the Sale Order. In connection with such assumption and assignment, Buyer shall pay and discharge all Cure Costs.

(b) To the maximum extent permitted by the Bankruptcy Code, the Acquired Assets shall be assumed by and assigned to Buyer pursuant to Section 365 of the Bankruptcy Code as of the Initial Closing Date or such other date as specified in an Order or this Agreement, as applicable. Notwithstanding any other provision of this Agreement to the contrary, this Agreement shall not constitute an agreement to assign any asset or any right thereunder if an attempted assignment without the consent of a third party, which consent has not been obtained prior to the Initial Closing (after giving effect to the Sale Order and the Bankruptcy Code), would constitute a breach or in any way adversely affect the rights of Buyer or Seller thereunder. If with respect to any Acquired Asset such consent is not obtained or such assignment is not attainable pursuant to Sections 105, 363 or 365 of the Bankruptcy Code other than as a result of the failure to pay Cure Costs that are not Assumed Liabilities, then such Acquired Asset shall not be transferred hereunder and the Initial Closing shall proceed with respect to the remaining Acquired Assets without any reduction in the Purchase Price. In the case of licenses, certificates, approvals, authorizations, Permits and pending applications therefor, Contracts and other commitments included in the Acquired Assets (i) that cannot be transferred or assigned effectively

 

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without the consent of third parties, which consent has not been obtained prior to the Initial Closing (after giving effect to the Sale Order and the Bankruptcy Code), Seller shall, at Buyer’s sole expense and subject to any approval of the Bankruptcy Court that may be required, reasonably cooperate with Buyer in endeavoring to obtain such consent and, if any such consent is not obtained, Seller shall, following the Initial Closing, at Buyer’s sole expense and subject to any approval of the Bankruptcy Court that may be required, cooperate with Buyer in all reasonable respects to provide to Buyer the benefits thereof in some other manner, or (ii) that are otherwise not transferable or assignable (after giving effect to the Sale Order and the Bankruptcy Code), Seller shall, following the Initial Closing, at Buyer’s sole expense and subject to any approval of the Bankruptcy Court that may be required, reasonably cooperate with Buyer to provide to Buyer the benefits thereof in some other manner (including the exercise of the rights of Sellers thereunder); provided that nothing in this Section 2.5(b) shall (x) require Seller to make any expenditure or incur any obligation on their own or on behalf of Buyer or (y) prohibit Seller from ceasing operations or winding up its affairs following the Initial Closing.

2.6 Further Assurances. In furtherance and not in limitation to the rights and obligations set forth in Section 7.3 , at the Initial Closing and Big River Closing, and at all times thereafter as may be necessary, Seller shall execute and deliver to Buyer such other instruments of transfer as shall be reasonably necessary or appropriate to vest in Buyer good and indefeasible title to the Acquired Assets free and clear of all En