ASSET PURCHASE AGREEMENT

Exhibit 10.1

 

 

 

TABLE OF CONTENTS

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EXHIBITS AND SCHEDULES

SCHEDULES

Company Disclosure Schedule:

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ASSET PURCHASE AGREEMENT

                    THIS ASSET PURCHASE AGREEMENT (this “Agreement”) is made and entered into as of the 29 ^th day of July, 2009 by and among Freedom Fuels, LLC , an Iowa limited liability company and debtor in possession (the “ Company ”) and Soy Energy, LLC , an Iowa limited liability company (“ Purchaser ”).

R E C I T A L S:

                    WHEREAS, the Company presently owns and operates a biodiesel production facility located at Mason City, Iowa (the “ Facility ”);

                    WHEREAS, the Company has filed a voluntary petition under Chapter 11 of Title 11 of the United States Code (otherwise referred to as the “Bankruptcy Code”) in the United States Bankruptcy Court for the Northern District of Iowa (the “ Bankruptcy Court ”), case number 09-02468-wle11 and is currently operating its business and managing its property as a Debtor in Possession pursuant to Bankruptcy Code Sections 1107 and 1108.

                    WHEREAS, the Company desires to sell, transfer and assign to Purchaser, and Purchaser desires to acquire from the Company, all of the Purchased Assets, as more specifically provided herein (the “ Transaction ”) which Transaction shall be pursuant to a plan of reorganizations and subject to approval and confirmation by the Bankruptcy Court;

                    WHEREAS, the Board of Directors of the Company (a) has determined that the Transaction is fair to and in the best interests of the Company and its unitholders and (b) has approved this Agreement, the consummation of the transactions contemplated hereby and the execution and delivery of this Agreement by the Company;

                    WHEREAS, the Board of Directors of Purchaser (a) has determined that the Transaction is fair to and in the best interests of Purchaser and its unitholders, (b) has approved this Agreement, the consummation of the transactions contemplated hereby and the execution and delivery of this Agreement by Purchaser, and (c) has determined to recommend adoption of this Agreement and approval of the Transaction on the terms and conditions set forth in this Agreement by the unitholders of Purchaser;

                    WHEREAS, the Company and Purchaser desire to make certain representations, warranties, covenants and agreements in connection with the Transaction and also to prescribe various conditions to the Transaction.

                    NOW, THEREFORE, in consideration of the foregoing premises and the respective representations, warranties, covenants, and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

 

ARTICLE I
DEFINITIONS AND TERMS

          Section 1.1 Certain Definitions . As used in this Agreement, the following terms have the meanings set forth below:

          “ Affiliate ” means, with respect to any Person, any Person directly or indirectly controlling, controlled by, or under common control with, such other Person as of the date on which, or at any time during the period for which, the determination of affiliation is being made. For purposes of this definition, the term “control” (including the correlative meanings of the terms “controlled by” and “under common control with”), as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management policies of such Person, whether through the ownership of voting securities or by contract or otherwise.

          “ Agreement ” means this Agreement, together with all of the Schedules and Exhibits hereto, as the same may be amended or supplemented from time to time in accordance with the terms hereof.

          “ Ancillary Agreements ” means all other agreements, documents and instruments required to be delivered by any party pursuant to this Agreement, and any other agreements, documents or instruments entered into at or prior to Closing in connection with this Agreement or the transactions contemplated hereby.

           “ Balance Sheet ” has the meaning set forth in the Section 4.4(a).

          “ Balance Sheet Date ” has the meaning set forth in the Section 4.4(a).

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

          “ Books and Records ” means all books, ledgers, files, reports, plans, records, manuals and other materials (in any form or medium) of, or maintained for, the Company and its Subsidiaries.

          “ Business ” means the development and ownership of biodiesel production facilities and the production, storage, transport, marketing and sale of biodiesel and businesses thereto, and engaging in activities ancillary or incidental thereto.

          “ Business Day ” means any day other than a Saturday, a Sunday, federal holiday or a day on which banks in the City of New York or the State of Delaware are authorized or obligated by Law to close.

          “ Chosen Courts ” has the meaning set forth in Section 12.10.

          “ Closing ” has the meaning set forth in Section 3.1.

          “ Closing Date ” has the meaning set forth in Section 3.1.

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          “ COBRA ” means the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended.

          “ Code ” means the Internal Revenue Code of 1986 and the regulations promulgated thereunder, as amended from time to time.

          “ Commercially Reasonable Efforts ” means the efforts, time and costs a prudent Person desirous of achieving a result would use, expend or incur in similar circumstances to achieve such results as expeditiously as possible; provided that such Person is not required to expend funds or assume liabilities beyond those that are (i) commercially reasonable in nature and amount in the context of the Transaction or (ii) otherwise required to be expended or assumed pursuant to the terms of this Agreement.

          “ Company ” has the meaning set forth in the Preamble.

          “ Company Adverse Recommendation Change ” has the meaning set forth in Section 6.6(c).

          “ Company Disclosure Schedule ” has the meaning set forth in the preamble to Article IV.

          “ Company Documents ” has the meaning set forth in Section 4.2(a).

          “ Company Monthly Financial Statements ” has the meaning set forth in Section 6.11.

          “ Company Permits ” has the meaning set forth in Section 4.17(b).

          “ Company Property ” has the meaning set forth in Section 4.10(a).

          “ Company Recommendation ” has the meaning set forth in Section 6.6(c).

          “ Company Unitholders ” means all holders of a membership interest in the Company.

          “ Confidentiality Agreement ” has the meaning set forth in Section 6.1.

          “ Contract ” means any written or oral contract, agreement, indenture, note, bond, debenture, mortgage, loan, instrument, lease, license, commitment or other obligation.

          “ Copyrights ” has the meaning set forth in the definition of Intellectual Property.

          “ Corn Oil Pretreatment Facility ” has the definition set forth in Section 6.16.

          “ DIP Loans ” has the meaning set forth in Section 4.8(f).

          “ Dividend Cash Flow Note ” shall mean that certain promissory note issued by New Equity, LLC to the Purchaser, dated the Closing Date, in the original principal amount of $2,000,000.

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          “ Documents ” means all files, documents, instruments, papers, books, reports, records, tapes, microfilms, photographs, letters, budgets, forecasts, ledgers, journals, title policies, lists of past, present and/or prospective customers, supplier lists, regulatory filings, operating data and plans, technical documentation (design specifications, functional requirements, operating instructions, logic manuals, flow charts, etc), user documentation (installation guides, user manuals, training materials, release notes, working papers, etc.), marketing documentation (sales brochures, flyers, pamphlets, web pages, etc.), and other similar materials related to the Business and the Purchased Assets, in each case whether or not in electronic form.

          “ Employee ” means all individuals (including common law employees, independent contractors and individual consultants), as of the date hereof, who are employed or engaged by the Company in connection with the Business, together with individuals who are hired in respect of the Business after the date hereof.

          “ Employee Benefit Plans ” has the meaning set forth in Section 4.14(a).

          “ Environmental Costs and Liabilities ” means, with respect to any Person, all Liabilities and Remedial Actions incurred as a result of any claim or demand by any other Person or in response to any violation of Environmental Law or to the extent based upon, related to, or arising under or pursuant to any Environmental Law, Environmental Permit, order or agreement with any Governmental Authority or other Person, or which relates to any environmental, health or safety condition, violation of Environmental Law or a Release or threatened Release of Hazardous Materials, whether known or unknown, accrued or contingent, whether based in contract, tort, implied or express warranty, strict liability, criminal or civil statute.

          “ Environmental Law ” means any foreign, federal, state or local law (including common law), statute, code, ordinance, rule, regulation or other legal requirement or obligation in any way relating to pollution, odors, noise, or the protection of human health and safety, the environment or natural resources, including the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. § 9601 et seq. ), the Hazardous Materials Transportation Act (49 U.S.C. App. § 1801 et seq. ), the Resource Conservation and Recovery Act (42 U.S.C. § 6901 et seq .), the Clean Water Act (33 U.S.C. § 1251 et seq. ), the Clean Air Act (42 U.S.C. § 7401 et seq. ), the Toxic Substances Control Act (15 U.S.C. § 2601 et seq. ), the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. § 136 et seq. ), and the Occupational Safety and Health Act (29 U.S.C. § 651 et seq. ), as each has been amended and the regulations promulgated pursuant thereto.

          “ Environmental Permit ” means any Permit required by Environmental Laws for the operation of the Business.

          “ ERISA ” means the Employment Retirement Income Security Act of 1974, as amended.

          “ ERISA Affiliate ” has the meaning set forth in Section 4.14(a).

          “ ERISA Affiliate Plans ” has the meaning set forth in Section 4.14(a).

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          “ Exchange Act ” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.

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

          “ Excluded Contracts ” means all Contracts of the Company related to the Business listed under the heading “Excluded Contracts” on Company Disclosure Schedule 1.1 and not including the Purchased Contracts.

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

          “ Facility ” has the meaning set forth in the Recitals.

          “ Final Closing Balance Sheet ” means the final Balance Sheet of the Company delivered to Purchaser prior to the Closing Date.

          “ Financial Statements ” has the meaning set forth in Section 4.4(a).

          “ FIRPTA Affidavit ” has the meaning set forth in Section 8.1(j).

          “ Former Employee ” means all individuals (including common law employees, independent contractors and individual consultants) who were employed or engaged by the Company in connection with the Business but who are no longer so employed or engaged on the date hereof.

          “ Furniture and Equipment ” means all furniture, furnishings, equipment, vehicles, leasehold improvements not deemed real estate by applicable Laws, and other tangible personal property, including all artwork, desks, chairs, tables, Hardware, copiers, telephone lines and numbers, telecopy machines and other telecommunication equipment, cubicles and miscellaneous office furnishings and supplies.

          “ GAAP ” means generally accepted accounting principles in the United States as of the date hereof.

          “ Governmental Authority ” means any government or governmental or regulatory body thereof, or political subdivision thereof, whether foreign, federal, state, or local, or any agency, instrumentality or authority thereof, or any court or arbitrator (public or private).

          “ Hardware ” means any and all computer and computer-related hardware, including, but not limited to, computers, file servers, facsimile servers, scanners, color printers, laser printers and networks.

          “ Hazardous Material ” means any substance, material or waste that is regulated, classified, or otherwise characterized under or pursuant to any Environmental Law as “hazardous,” “toxic,” “pollutant,” “contaminant,” “radioactive,” or words of similar meaning or effect, including

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petroleum and its by-products, asbestos, polychlorinated biphenyls, radon, mold or other fungi and urea formaldehyde insulation.

          “ Indebtedness ” of any Person means, without duplication, (i) the principal, accreted value, accrued and unpaid interest, prepayment and redemption premiums or penalties (if any), unpaid fees or expenses and other monetary obligations in respect of (A) indebtedness of such Person for money borrowed and (B) indebtedness evidenced by notes, debentures, bonds or other similar instruments for the payment of which such Person is responsible or liable; (ii) all obligations of such Person issued or assumed as the deferred purchase price of property, all conditional sale obligations of such Person and all obligations of such Person under any title retention agreement (but excluding trade accounts payable and other accrued current liabilities arising in the Ordinary Course of Business); (iii) all obligations of such Person under leases required to be capitalized in accordance with GAAP; (iv) all obligations of such Person for the reimbursement of any obligor on any letter of credit, banker’s acceptance or similar credit transaction that has been drawn upon, including any fees related to such obligations whether or not drawn upon; (v) all obligations of such Person under interest rate or currency swap transactions (valued at the termination value thereof); (vi) the liquidation value, accrued and unpaid dividends and prepayment or redemption premiums and penalties (if any), unpaid fees or expense and other monetary obligations in respect of any and all redeemable preferred stock of such Person; (vii) all checks issued by the Company prior to the Closing Date that remain outstanding as of the Closing Date; (viii) all obligations of the type referred to in clauses (i) through (vii) of any Persons for the payment of which such Person is responsible or liable, directly or indirectly, as obligor, guarantor, surety or otherwise, including guarantees of such obligations; and (ix) all obligations of the type referred to in clauses (i) through (viii) of other Persons secured by (or for which the holder of such obligations has an existing right, contingent or otherwise, to be secured by) any Lien on any property or asset of such Person (whether or not such obligation is assumed by such Person).

          “ Intellectual Property ” means all right, title and interest in or relating to intellectual property, whether protected, created or arising under the laws of the United States or any other jurisdiction, including: (i) all patents and applications therefor, including all continuations, divisionals and continuations-in-part and patents issuing thereon, along with all reissues, reexaminations, substitutions and extensions thereof (collectively, “ Patents ”); (ii) all trademarks, service marks, trade names, trade dress, logos, corporate names and other source or business identifiers, together with the goodwill associated with any of the foregoing, along with all applications, registrations, renewals and extensions thereof (collectively, “ Marks ”); (iii) all Internet domain names; (iv) all copyrights, works of authorship and moral rights, and all registrations, applications, renewals, extensions and reversions of any of the foregoing (collectively, “ Copyrights ”); (v) trade secrets (“ Trade Secrets ”); and (vi) all other intellectual property rights arising from or relating to Technology that is owned by the Company and related to the Business or (ii) used by the Company in connection with the Business.

          “ Intellectual Property Licenses ” means (i) any grant by the Company to another Person of any right, permission, consent or non-assertion relating to or under any of the Purchased

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Intellectual Property and (ii) any grant by another Person to the Company of any right, permission, consent or non-assertion relating to or under any third Person’s Intellectual Property.

          “ IRS ” means the United States Internal Revenue Service and, to the extent relevant, the United States Department of Treasury.

          “ Knowledge ” or any similar phrase means (i) with respect to the Company, the collective actual knowledge of Ed Dannen and Dale McBride, and (ii) with respect to Purchaser, the collective actual knowledge of Chuck Sand and Rick Davis.

          “ Labor Contracts ” has the meaning set forth in Section 4.15(a).

          “ Law ” means any federal, state or local law (including common law), statute, code, ordinance, rule, regulation or other legal requirement or obligation.

          “ Legal Proceeding ” means any judicial, administrative or arbitral actions, suits, mediations, investigations, inquiries, proceedings or claims (including counterclaims) by or before a Governmental Authority.

          “ Liability ” means any debt, loss, damage, adverse claim, fines, penalties, liability or obligation (whether direct or indirect, known or unknown, asserted or unasserted, absolute or contingent, accrued or unaccrued, matured or unmatured, determined or determinable, disputed or undisputed, liquidated or unliquidated, or due or to become due, and whether in contract, tort, strict liability or otherwise), and including all costs and expenses relating thereto (including all fees, disbursements and expenses of legal counsel, experts, engineers and consultants and costs of investigation).

          “ Lien ” means any lien, encumbrance, pledge, mortgage, deed of trust, security interest, claim, lease, charge, option, right of first refusal, easement, servitude, proxy, voting trust or agreement, transfer restriction under any unitholder or similar agreement, encumbrance or any other restriction or limitation whatsoever.

          “ Loan ” and “ Loan Guarantee ” shall have the meanings set forth in Section 6.16(b).

          “ Marks ” has the meaning set forth in the definition of Intellectual Property.

          “ Material Adverse Effect ” means an effect, condition or change that is materially adverse to the business, assets, properties, financial condition, or results of operations of the Company and its Subsidiaries, taken as a whole, Purchaser and its Subsidiaries, taken as a whole; provided, however, that effects, conditions and changes relating to the following shall not constitute a Material Adverse Effect, and shall not be considered in determining whether a Material Adverse Effect has occurred:

          (a) changes in the economy or financial or commodities markets generally in the United States;

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          (b) changes that are the result of factors generally affecting the industries in which the Company and Purchaser and their Subsidiaries operate; or

          (c) changes proximately caused by the pendency or the announcement of this Agreement or the transactions contemplated hereby.

          “ Material Contracts ” has the meaning set forth in Section 4.13(a).

          “ Nonassignable Assets ” has the meaning set forth in Section 2.4(b).

          “ Order ” means any order, injunction, judgment, doctrine, decree, ruling, writ, assessment or arbitration award of a Governmental Authority.

          “ Ordinary Course ” or “ Ordinary Course of Business ” means the conduct of the business of the Company and its Subsidiaries or Purchaser and its Subsidiaries (as the case may be) in accordance with their normal day-to-day customs, practices and procedures as conducted from time to time prior to the date of this Agreement and shall include the activities of the Company and its Subsidiaries, Purchaser and its Subsidiaries undertaken in connection with their respective obligations under this Agreement. For purposes of this definition with regard to the Company, Ordinary Course refers to the operation of the Company prior to bankruptcy.

          “ Organizational Documents ” means the articles of organization or certificate of formation and operating agreement for a limited liability company, and such other documents necessary to meet the applicable Law for organization of the applicable entity type in its state of organization.

          “ Owned Property ” has the meaning set forth in Section 4.10(a).

          “ Patents ” has the meaning set forth in the definition of Intellectual Property.

          “ Permits ” means any approvals, authorizations, consents, licenses, permits or certificates of a Governmental Authority.

           “ Person ” means any individual, corporation, limited liability company, partnership, firm, joint venture, association, joint-stock company, trust, unincorporated organization, Governmental Authority or other entity.

          “ Proxy Statement ” refers to the proxy statement to be filed with the SEC by Purchaser in connection with this Transaction and the Purchaser Unitholder Approval.

          “ Purchase Price ” has the meaning set forth in Section 3.3.

          “ Purchased Assets ” has the meaning set forth in Section 2.1.

          “ Purchased Contracts ” means all Contracts of the Company related to the Business listed under the heading “Purchased Contracts” on the Company Disclosure Schedule 1.1 and not including the Excluded Contracts.

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          “ Purchaser ” has the meaning set forth in the Preamble.

           “ Purchaser Disclosure Schedule ” has the meaning set forth in the preamble to Article V.

          “ Purchaser Documents ” has the meaning set forth in Section 5.2.

          “ Purchaser’s Environmental Assessment ” has the meaning set forth in Section 6.10.

          “ Purchaser Unitholder Approval ” means the affirmative vote (in person or by proxy) of the holders of a majority of the outstanding membership units of Purchaser representing a quorum in favor of the adoption of this Agreement and the transactions contemplated hereby.

          “ Purchaser Unitholder Meeting ” means the special meeting of Purchaser Unitholders held for the purpose of the Purchaser Unitholder Approval.

          “ Purchaser Unitholders ” means all of the holders of units of Purchaser eligible to vote on this Agreement and the Transaction.

          “ Purchaser Units ” means the membership interests of Purchaser.

          “ Real Property Leases ” has the meaning set forth in Section 4.10(a).

          “ Related Persons ” has the meaning set forth in Section 4.22.

          “ Release ” means any release, spill, emission, leaking, pumping, pouring, injection, deposit, dumping, emptying, disposal, discharge, dispersal, leaching or migration into the indoor or outdoor environment, or into or out of any property.

          “ Remedial Action ” means all actions including any capital expenditures undertaken to (i) clean up, remove, treat or in any other way address any Hazardous Material; (ii) prevent the Release or threat of Release, or minimize the further Release of any Hazardous Material so it does not endanger or threaten to endanger public health or welfare or the indoor or outdoor environment; (iii) perform pre-remedial studies and investigations or post-remedial monitoring and care; or (iv) correct a condition of noncompliance with Environmental Laws.

          “ Representatives ” has the meaning set forth in Section 6.6(a).

          “ Restricted Business ” has the meaning set forth in Section 6.7(a).

          “ SEC ” means the United States Securities and Exchange Commission.

          “ Securities Act ” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.

          “ Small Business Loan ” has the meaning set forth in Section 6.16(c).

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          “ Software ” means any and all (i) computer programs, including any and all software implementations of algorithms, models and methodologies, whether in source code or object code; (ii) databases and compilations, including any and all data and collections of data, whether machine readable or otherwise; (iii) descriptions, flow-charts and other work product used to design, plan, organize and develop any of the foregoing, screens, user interfaces, report formats, firmware, development tools, templates, menus, buttons and icons; and (iv) all documentation, including user manuals and other training documentation, related to any of the foregoing.

          “ Subsidiary ” means, with respect to any Person, any other Person of which (i) a majority of the outstanding share capital, voting securities or other equity interests are owned, directly or indirectly, by such Person or (ii) such Person is entitled, directly or indirectly, to appoint a majority of the board of directors or managers or comparable supervisory body of the other Person.

          “ Takeover Proposal ” has the meaning set forth in Section 6.6(d).

          “ Tax ” or “ Taxes ” means (i) any and all federal, state, local or foreign taxes, charges, fees, imposts, levies or other assessments, including, without limitation, all net income, gross receipts, capital, sales, use, ad valorem, value added, transfer, franchise, profits, inventory, capital stock, license, withholding, payroll, employment, social security, unemployment, excise, severance, stamp, occupation, property and estimated taxes, customs duties, fees, assessments and charges of any kind whatsoever; (ii) all interest, penalties, fines, additions to tax or additional amounts of any kind imposed by any Taxing Authority in connection with any item described in clause (i); and (iii) any liability in respect of any items described in clauses (i) and/or (ii) payable by reason of Contract, assumption, transferee liability, operation of law, Treasury Regulation Section 1.1502-6(a) (or any predecessor or successor thereof or any analogous or similar provision under law) or otherwise.

          “ Taxing Authority ” means the IRS and any other Governmental Authority responsible for the administration of any Tax.

          “ Tax Return ” means any return, report or statement filed or required to be filed with respect to any Tax (including any elections, declarations, schedules or attachments thereto, and any amendment thereof), including any information return, claim for refund, amended return or declaration of estimated Tax, and including, where permitted or required, com­bined, consolidated or unitary returns for any group of entities that includes the Company or any of its Affiliates.

          “ Technology ” means, collectively, all Software, information, designs, formulae, algorithms, procedures, methods, techniques, ideas, know-how, research and development, technical data, programs, subroutines, tools, materials, specifications, processes, inventions (whether patentable or unpatentable and whether or not reduced to practice), apparatus, creations, improvements, works of authorship and other similar materials, and all recordings, graphs, drawings, reports, analyses, and other writings, and other tangible embodiments of the foregoing, in any form whether or not specifically listed herein, and all related technology, that are used in, incorporated in, embodied in, displayed by or related to, or are used in connection

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with the foregoing that is (i) owned by the Company and related to the Business or (ii) used by the Company in connection with the Business, including, without limitation, all Software and other Technology developed by the Company and relating to employees and payroll.

          “ Termination Date ” has the meaning set forth in Section 9.1.

          “ Termination Fee ” has the meaning set forth in Section 9.4(a).

          “ Trade Secrets ” has the meaning set forth in the definition of Intellectual Property.

          “ Transaction ” has the meaning set forth in Recitals.

          “ Transfer Taxes ” has the meaning set forth in Section 10.1.

          “ Transferred Employees ” has the meaning set forth in Section 7.1.

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

          Section 1.2      Other Terms . Other terms may be defined elsewhere in the text of this Agreement and, unless otherwise indicated, shall have such meaning throughout this Agreement.

          Section 1.3      Other Definitional Provisions . Unless the express context otherwise requires:

          (a)     the words “hereof”, “herein”, “hereunder”, “hereby” and “herewith” and words of similar import, when used in this Agreement, shall refer to this Agreement as a whole and not to any particular provision of this Agreement;

          (b)     the terms defined in the singular have a comparable meaning when used in the plural, and vice versa;

          (c)     where a word or phrase is defined herein, each of its other grammatical forms will have a corresponding meaning;

          (d)     any references herein to “Dollars” and “$” are to United States Dollars;

          (e)     any references herein to a specific Article, Section, paragraph, Schedule or Exhibit shall refer, respectively, to Articles, Sections, paragraphs, Schedules or Exhibits of this Agreement;

          (f)     any references herein to an agreement, instrument or document means such agreement, instrument or document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof and not prohibited by this Agreement;

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          (g)     any references herein to a statute means such statute as amended as of the date of this Agreement and, for purposes of the Closing hereunder, shall include such statute as amended or successor thereto effective as of the Closing Date;

          (h)     wherever the word “include,” “includes,” or “including” is used in this Agreement, it shall be deemed to be followed by the words “without limitation”; and

          (i)     references herein to any gender includes the other gender; and

          (j)     references to any party to this Agreement or any other agreement or document will include each party’s predecessors, successors and permitted assigns.

          Section 1.4      Interpretation . The headings and captions used in this Agreement and any Schedule or Exhibit hereto, in the table of contents or any index hereto are for convenience of reference only and do not a constitute a part of this Agreement and shall not be deemed to limit, characterize or in any way effect any provision of this Agreement or any Schedule or Exhibit hereto, and all provisions of this Agreement and the Schedules and Exhibits hereto shall be enforced and construed as if no caption or heading had been used herein or therein. Any capitalized terms used in any Schedule or Exhibit attached hereto and not otherwise defined therein shall have the meaning set forth in the Agreement (or, in the absence of any ascribed meaning, the meaning customarily ascribed to any such term in the Company’s industry or in general commercial usage). The Schedules and Exhibits referred to herein shall be construed with and as an integral part of this Agreement to the same extent as if they were set forth verbatim herein.

ARTICLE II
PURCHASE AND SALE OF ASSETS; EXCLUDED LIABILITIES

          Section 2.1      Purchase and Sale of Assets . On the terms and subject to the conditions set forth in this Agreement, at the Closing Purchaser shall purchase, acquire and accept from the Company, and the Company shall sell, transfer, assign, convey and deliver to Purchaser all of the Company’s right, title and interest in, to and under the Purchased Assets, free and clear of all Liens, claims and interests. “ Purchased Assets ” shall mean all of the business, assets, properties, contractual rights, goodwill, going concern value, rights and claims of the Company related to the Business on the Closing Date, wherever situated and of whatever kind and nature, real or personal, tangible or intangible, whether or not reflected on the Books and Records of the Company (other than Excluded Assets), including each of the following assets:

          (a)     all inventory used or useful in the Business, except such inventory subject to valid, binding and perfected liens, claims and interests of Secured Creditors of the Company as listed on Schedule 2.1(a) hereto;

          (b)     all tangible personal property used or useful in the Business, including Furniture and Equipment;

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          (c)     all deposits (including customer deposits and security for rent, electricity, telephone, hedging contracts or otherwise) and prepaid charges and expenses, including any prepaid rent, of the Company, except such deposits subject to valid, binding and perfected liens, claims and interests of Secured Creditors of the Company as listed on Schedule 2.1(c) hereto;

          (d)     all rights of the Company under all Company Property (whether owned or leased), together with all buildings, improvements, fixtures and other appurtenances thereto and rights in respect thereof;

          (e)     the Intellectual Property and Technology of the Company;

          (f)     all rights of the Company under the Purchased Contracts, including all claims or causes of action with respect to the Purchased Contracts;

          (g)     all Books and Records of the Company and all other Documents that are related to the Business, including Documents relating to products, services, marketing, advertising, promotional materials, Intellectual Property, Technology, personnel files for Employees, and all files, customer files and documents (including credit card information), supplier lists, records, literature and correspondence, whether or not physically located on any of the Company Property, but excluding those documents referred to in Section 2.2(b) below;

          (h)     all Permits, including Environmental Permits, used by the Company in the Business (which includes all Permits necessary to conduct the Business) and all rights and incidents of interest therein;

          (i)     all raw materials and supplies owned by the Company and used in connection with the Business, except such raw materials and supplies subject to valid, binding and perfected liens, claims and interests of Secured Creditors of the Company as listed on Schedule 2.1(i) hereto;

          (j)     all rights of the Company under non-disclosure or confidentiality, non-compete or non-solicitation agreements with Former Employees, Employees and agents of the Company or with third parties to the extent relating to the Business or the Purchased Assets (or any portion thereof);

          (k)     all rights of the Company under or pursuant to all warranties, representations and guaranties made by suppliers, manufacturers and contractors to the extent relating to products sold or services provided to the Company or to the extent affecting any Purchased Asset;

          (l)     all work-in-process;

          (m)    all other assets reflected on the Company Balance Sheet, except such other assets subject to valid, binding and perfected liens, claims and interests of Secured Creditors of the Company as listed on Schedule 2.1(m) hereto;

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          (n)     all claims, choses-in-action and rights in litigation and settlements in respect thereof, except such claims, choses-in-action and rights in litigation and settlements subject to valid, binding and perfected liens, claims and interests of Secured Creditors of the Company as listed on Schedule 2.1(n) hereto;

          (o)     all third-party property and casualty insurance proceeds, and all rights to third-party property and casualty insurance proceeds, in each case to the extent received or receivable in respect of the Business except such third-party property and casualty insurance proceeds subject to valid, binding and perfected liens, claims and interests of Secured Creditors of the Company as listed on Schedule 2.1(o) hereto;

          (p)     all incentives, refunds and rebates, including any biodiesel credits from any Governmental Authority related to the Facility except those incentives subject to valid, binding and perfected liens, claims and interests of Secured Creditors of the Company as listed on Schedule 2.1(p) hereto;

          (q)     all shares of capital stock or other equity securities held by the Company with respect to any other Person; and

          (r)     all goodwill and other intangible assets associated with the Business, including the goodwill associated with the Intellectual Property of the Company.

          Section 2.2      Excluded Assets . Nothing herein contained shall be deemed to sell, transfer, assign or convey the Excluded Assets to Purchaser, and the Company shall retain right, title and interest to, in and under the Excluded Assets. “ Excluded Assets ” shall mean each of the following assets:

          (a)     the Excluded Contracts;

          (b)     all Books and Records of the Company as pertain to ownership, organization or existence of the Company and duplicate copies of such records as are necessary to enable the Company to file tax returns and reports and to fulfill its reporting obligations under applicable securities laws;

          (c)     all membership interests (units) or other equity securities of the Company; and

          (d)     all assets of any trust attributable to Employees and Former Employees in connection with any Employee Benefit Plan;

          Section 2.3      Excluded Liabilities . Purchaser will not assume or be liable for any liabilities of the Company, including without limitation, the Excluded Liabilities. The Company shall timely perform, satisfy and discharge in accordance with their respective terms all Excluded Liabilities. “ Excluded Liabilities ” shall mean all Liabilities of the Company arising out of, relating to or otherwise in respect of the Business on or before the Closing Date and all other

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Liabilities of the Company. Excluded Liabilities shall include, but not be limited to, the following Liabilities and in no event shall Purchaser assume any liability for the matters set out in this Section 2.3:

          (a)     all Liabilities of the Company under the Purchased Contracts incurred on or prior to the Closing Date;

          (b)     all accounts payable of the Company;

          (c)     all Liabilities arising out of, under or in connection with any Indebtedness of the Company;

          (d)     all Liabilities, to the extent reflected in the Final Closing Balance Sheet;

          (e)     all Liabilities arising out of, relating to or with respect to (i) the employment or performance of services, or termination of employment or services, by the Company of any of its Affiliates of any individual on or before the Closing Date; (ii) workers’ compensation claims against the Company that relate to the period on or before the Closing Date, irrespective of whether such claims are made prior to or after the Closing, and (iii) any Employee Benefit Plan;

          (f)     all Liabilities arising out of, under or in connection with Excluded Contracts and, with respect to Purchased Contracts, Liabilities in respect of a breach by or default of the Company accruing under such Contracts with respect to any period prior to Closing;

          (g)     all Liabilities for (i) Taxes of the Company or any Subsidiary (or any predecessor thereof), (ii) Taxes that relate to the Purchased Assets for taxable periods (or portions thereof) ending on or before the Closing Date, including, without limitation, Taxes allocable to the Company pursuant to Section 10.2, and (iii) payments under any Tax allocation, sharing or similar agreement (whether oral or written);

          (h)     all Liabilities in respect of any pending or threatened Legal Proceeding, or any claim arising out of, relating to or otherwise in respect of (i) the operation of the Business to the extent such Legal Proceeding or claim relates to such operation on or prior to the Closing Date, except as provided in Section 2.3(f) hereof, or (ii) any Excluded Asset;

          (i)     all Environmental Costs and Liabilities of the Company or relating to the Purchased Assets;

          (j)     all Liabilities or obligations of the Company relating to the business, operations, assets or Liabilities of any Subsidiary or former Subsidiary of the Company based upon, relating to or arising out of events, actions or failures to act prior to the Closing Date; and

          (k)     all Liabilities of the Company or its officers or directors to the holders of the membership or other equity interests of the Company.

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          Section 2.4      Further Conveyances; Consent of Third Parties .

          (a)     From time to time following the Closing, the Company and Purchaser shall, and shall cause their respective Affiliates to, execute, acknowledge and deliver all such further conveyances, notices, releases and acquittances and such other instruments, and shall take such further actions, as may be reasonably necessary or appropriate to assure fully to Purchaser and its successors or assigns, all of the properties, rights, titles, interests, estates, remedies, powers and privileges intended to be conveyed to Purchaser under this Agreement and the Company Documents and to otherwise make effective the transactions contemplated hereby and thereby.

          (b)     Nothing in this Agreement nor the consummation of the transactions contemplated hereby shall be construed as an attempt or agreement to assign any Purchased Asset, including any Contract, Permit, certificate, approval, authorization or other right, which by its terms or by Law is nonassignable without the consent of a third party or a Governmental Authority or is cancelable by a third party in the event of an assignment (“ Nonassignable Assets ”) unless and until such consent shall have been obtained. The Company shall use its commercially reasonable efforts to obtain such consents promptly. To the extent permitted by applicable Law, in the event consents to the assignment thereof cannot be obtained, such Nonassignable Assets shall be held, as of and from the Closing Date, by the Company in trust for Purchaser and the covenants and obligations thereunder shall be performed by Purchaser in the Company’s name and all benefits and obligations existing thereunder shall be for Purchaser’s account. The Company shall take or cause to be taken at the Company’s expense such actions in its name or otherwise as Purchaser may reasonably request so as to provide Purchaser with the benefits of the Nonassignable Assets and to effect collection of money or other consideration that becomes due and payable under the Nonassignable Assets, and the Company shall promptly pay over to Purchaser all money or other consideration received by it in respect of all Nonassignable Assets less the amount of any expenses incurred by the Company in connection with the collection. As of and from the Closing Date, the Company authorizes Purchaser, to the extent permitted by applicable Law and the terms of the Nonassignable Assets, at Purchaser’s expense, to perform all the obligations and receive all the benefits of the Company under the Nonassignable Assets and appoints Purchaser its attorney-in-fact to act in its name on its behalf with respect thereto.

          Section 2.5      Proration of Certain Expenses . Subject to Section 2.3(d) and Section 10.2 with respect to Taxes, all expenses and other payments in respect of the Owned Property and all rents and other payments (including any prepaid amounts) due under the Real Property Leases and any other leases constituting part of the Purchased Assets shall be prorated between the Company, on the one hand, and Purchaser, on the other hand, as of the Closing Date. The Company shall be responsible for all rents (including any percentage rent, additional rent and any accrued tax and operating expense reimbursements and escalations), charges and other payments of any kind accruing during any period under the Real Property Leases or any such other leases up to and including the Closing Date. Purchaser shall be responsible for all such rents, charges and other payments accruing during any period under the Real Property Leases or any such other leases after the Closing Date. Purchaser shall pay the full amount of any invoices received by it and shall submit a request for reimbursement to the Company for the Company’s

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share of such expenses and the Company shall pay the full amount of any invoices received by it and Purchaser shall reimburse the Company for Purchaser’s share of such expenses.

          Section 2.6      Accounts Receivable . Subject to valid, binding and perfected liens, claims and interests of Secured Creditors of the Company to accounts receivable as listed on Schedule 2.6 hereto, to the extent the Company transfers any of its Accounts Receivable to Purchaser, the Company shall provide commercially reasonable assistance to Purchaser in the collection of such accounts receivable. If the Company shall receive payment in respect of accounts receivable that are included in the Purchased Assets, then the Company shall promptly forward such payment to Purchaser.

ARTICLE III
CLOSING; CONSIDERATION

          Section 3.1      Closing . The consummation of the purchase and sale of the Purchased Assets provided for in Article II hereof (the “ Closing ”) shall take place at the offices of BrownWinick, 666 Grand Avenue, Suite 2000 Des Moines, Iowa 50309 (or at such other place as the parties may designate in writing) on a date to be specified by the parties (the “ Closing Date ”), which date shall be no later than the third (3rd) Business Day after satisfaction or waiver of the conditions set forth in Article VIII (other than conditions that by their nature are to be satisfied at Closing, but subject to the satisfaction or waiver of those conditions at such time), unless another time, date or place is agreed to in writing by the parties hereto.

          Section 3.2      Procedure at Closing . At the Closing, the parties agree that the following shall occur:

          (a)     each of the conditions precedent (as applicable) in Section 8.1 shall have been satisfied, or such condition(s) shall have been expressly waived in writing by Purchaser;

          (b)     each of the conditions precedent (as applicable) in Section 8.2 shall have been satisfied, or such condition(s) shall have been expressly waived in writing by the Company; and

          (c)     all of the documents and instruments delivered at the Closing shall be in form and substance, and shall be executed and delivered in a manner, reasonably satisfactory to the parties’ respective counsel.

          Section 3.3      Consideration . In consideration of the purchase and sale of the Purchased Assets provided for in Article II hereof, Purchaser shall pay the following at the Closing, subject to the conditions set forth in this Agreement (collectively, the “ Purchase Price ”):

          (a)     cash in the amount of $9,000,000;

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          (b)     an Assignment Agreement in the form attached hereto as Exhibit A dated the Closing Date, assigning to the Company all of Purchaser’s right, title and interest in and to the DIP Loans; and

          (c)     an Assignment Agreement in the form attached hereto as Exhibit B dated the Closing Date, assigning to the Company all of Purchaser’s right, title and interest in and to the Dividend Cash Flow Note.

ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY

          The Company hereby represents and warrants to Purchaser that, except as set forth in the disclosure schedule (with specific reference to the Section or subsection of this Agreement to which the information stated in such disclosure schedule relates) delivered by the Company to Purchaser simultaneously with the execution of this Agreement (the “ Company Disclosure Schedule ”):

          Section 4.1      Organization and Existence; No Subsidiaries .

          (a)     The Company is a limited liability company duly organized and validly existing under the laws of the State of Iowa and has all requisite limited liability company power and authority to own, lease and operate its properties and to carry on its business as now conducted and as currently proposed to be conducted. The Company is duly qualified or authorized to do business under the laws of each jurisdiction in which it owns or leases real property and each other jurisdiction in which the conduct of its business or the ownership of its properties requires such qualification or authorization, except where the failure to be so qualified or authorized could not have or reasonably be expected to have a Material Adverse Effect with respect to the Company. The Company has delivered to Purchaser true, complete and correct copies of its operating agreement as in effect on the date hereof.

          (b)     The Company does not, directly or indirectly, own any stock or other equity interest in any other Person. No former Subsidiary of the Company had any operations, business, Liabilities or other activities that would create a Liability on the part of the Company.

          Section 4.2      Authorization of Agreement .

          (a)     After confirmation of the Company’s Plan of Reorganization, and entry of a final, non-appealable order by the Bankruptcy Court to that effect and which specifically approves this Agreement, the Company shall be authorized to and have such power and authority to consummate the transactions contemplated by this Agreement and each other agreement, document, or instrument or certificate contemplated by this Agreement or to be executed by the Company in connection with the consummation of the transactions contemplated by this Agreement (the “ Company Documents ”) and, to perform its obligations hereunder and thereunder and to consummate the transactions contemplated hereby and thereby, which will become valid and binding upon the Company. The execution and delivery by the Company of this Agreement and each of the Company Documents and the consummation of the transactions

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contemplated hereby and thereby have been duly authorized and approved by the Company’s Board of Directors and no other action on the part of the Company as an Iowa limited liability company is necessary to authorize the execution, delivery and performance of this Agreement and the transactions contemplated hereby, other than the need for approval by the Bankruptcy Court in connection with the confirmation of the Company’s plan of reorganization and the transactions contemplated by this Agreement. This Agreement has been, and each of the Company Documents will be, at or prior to the Closing, duly executed and delivered by the Company and (assuming the due authorization, execution and delivery by Purchaser) this Agreement constitutes, and each of the Company Documents when so executed and delivered will constitute, legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their terms.

          (b)     If required by applicable law, the Company has obtained any and all approvals of its equity owners and members necessary to adopt this Agreement and approve the transactions contemplated hereby. None of the Organizational Documents of the Company, other Documents between the Company and the Company Unitholders, or applicable Law grant, provide for, or establish dissenter’s appraisal rights with respect to the Transaction.

          Section 4.3      Conflicts; Consents of Third Parties .

          (a)     None of the execution and delivery by the Company of this Agreement or by the Company of the Company Documents, the consummation of the transactions contemplated hereby or thereby, or compliance by the Company with any of the provisions hereof or thereof will conflict with, or result in any violation or breach of, or conflict with or cause a default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of any obligation or the loss of a material benefit under, or give rise to any obligation of the Company to make any payment under, or to the increased, additional, accelerated or guaranteed rights or entitlements of any Person under, or result in the creation of any Liens upon any of the properties or assets of the Company under, any provision of (i) the operating agreement of the Company; (ii) any Purchased Contract or Permit to which the Company is a party or by which any of the properties or assets of the Company are bound, except as could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect with respect to the Company; (iii) any Order applicable to the Company or by which any of the properties or assets of the Company are bound; or (iv) any applicable Law.

          (b)     No consent, waiver, approval, Permit or authorization of or filing with, or notification to, any Person or Governmental Authority is required on the part of the Company in connection with (i) the execution and delivery of this Agreement or the Company Documents, the compliance by the Company with any of the provisions hereof and thereof, the consummation of the transactions contemplated hereby and thereby or the taking by the Company of any other action contemplated hereby or thereby, or (ii) the continuing validity and effectiveness immediately following the Closing of any Contract or Permit of the Company, except (A) for the filing with the SEC of the Proxy Statement and (B) the approval by the Bankruptcy Court (which includes the opportunity for a vote by creditors and certain other specified parties).

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          Section 4.4      Financial Statements .

          (a)     The Company has delivered to Purchaser copies of (i) the audited balance sheets of the Company at September 30, 2008, September 30, 2007 and September 30, 2006 and the related audited statements of income and of cash flows of the Company for the years then ended and (ii) the unaudited balance sheet of the Company at May 31, 2009 and the related statement of income and cash flows of the Company for the eight (8) month period then ended (such audited and unaudited statements, including the related notes and schedules thereto, are referred to herein as the “ Financial Statements ”). Each of the Financial Statements is complete and correct in all material respects, has been prepared in accordance with GAAP consistently applied without modification of the accounting principles used in the preparation thereof throughout the periods presented and presents fairly in all material respects the consolidated financial position, results of operations and cash flows of the Company as at the dates and for the periods indicated. For the purposes hereof, the unaudited balance sheet of the Company as at May 31, 2009 is referred to as the “ Balance Sheet ” and May 31, 2009 is referred to as the “ Balance Sheet Date .”

           (b)     Since September 30, 2005 (i) neither the Company nor any of its Subsidiaries nor, to the Knowledge of the Company, any representative of the Company or any of its Subsidiaries has received or otherwise obtained Knowledge of any material complaint, allegations, assertion or claim, whether written or oral, regarding the accounting or auditing practices, procedures, methodologies or methods of the Company or any of its Subsidiaries or their respective internal accounting controls relating to periods after September 30, 2005, including any material complaint, allegation, assertion or claim that the Company or any of its Subsidiaries has engaged in questionable accounting or auditing practices (except for any of the foregoing received after the date of this Agreement which have no reasonable basis), and (ii) to the Knowledge of the Company, no attorney representing the Company or any of its Subsidiaries, whether or not employed by the Company or its Subsidiaries, has reported evidence of a material violation of securities law, breach of fiduciary duty or similar violation, relating to periods after September 30, 2005, by the Company or the officers, directors, employees or agents of the Company to the Board of Directors of the Company or any committee thereof or to any director or executive officer of the Company.

          Section 4.5      No Undisclosed Liabilities . The Company has no Indebtedness or Liabilities (whether or not required under GAAP to be reflected on a balance sheet or the notes thereto) other than those (i) specifically reflected in, fully reserved against or otherwise described in the Balance Sheet or the notes thereto, (ii) incurred in the Ordinary Course of Business since the Balance Sheet Date, or (iii) that are immaterial, individually or in the aggregate, to the Company.

          Section 4.6      SEC Filings . The Company has complied in all material respects at all times with any and all applicable federal, state and foreign securities laws. The Company has never been subject to the filing requirements set forth in Section 12 of the Exchange Act.

          Section 4.7      Title to Purchased Assets; Sufficiency . The Company owns and has good title to each of the Purchased Assets free and clear of all Liens other than as set forth on

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Company Disclosure Schedule 4.7 . Any Liens, including without limitation those set forth on Company Disclosure Schedule 4.7 , shall be removed and the Purchased Assets transferred free and clear of Liens. The Purchased Assets constitute all of the assets and properties used in or held for use in the Business and are sufficient for Purchaser to conduct the Business from and after the Closing Date without interruption and in the Ordinary Course of Business.

          Section 4.8      Absence of Certain Developments . Except as expressly contemplated by this Agreement since the Balance Sheet Date, (a) the Company has conducted the Business only in the Ordinary Course of Business and (b) there has not been any event, change, occurrence or circumstance that, individually or in the aggregate, with any other events, changes, occurrences or circumstances, has had or could reasonably be expected to have a Material Adverse Effect with respect to the Company. Without limiting the generality of the foregoing, since the Balance Sheet Date:

          (a)     there has not been any damage, destruction or loss, whether or not covered by insurance, with respect to the Purchased Assets having a replacement cost of more than $10,000 for any single loss or $50,000 for all such losses except shrinkage of biodiesel inventory in the Ordinary Course of Business;

          (b)     the Company has not entered into any employment, deferred compensation, long-term incentive, stay bonus, bonus, or similar agreement (nor amended any such agreement) or agreed to increase the compensation payable or to become payable by it to any of the Company’s employees, agents or representatives or agreed to increase the coverage or benefits available under any severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with such employees, agents or representatives;

          (c)     the Company has not made any capital investment in, any loan to, or any acquisition of the securities or assets of, any other Person;

          (d)     the Company has not mortgaged, pledged or subjected to any Lien any of its assets, or acquired any assets or sold, assigned, transferred, conveyed, leased or otherwise disposed of any assets of the Company;

          (e)     the Company has not amended, modified, canceled, terminated, relinquished, waived or released any Contract or right which, in the aggregate, would not be material to the Company;

          (f)     except for those certain loans and advances made by New Equity, LLC to the Company, as debtor in possession, in connection with the Company’s bankruptcy proceedings (the “DIP Loans”), the Company has not issued, created, incurred, assumed or guaranteed any Indebtedness;

          (g)     the Company has not made or committed to make any capital expenditures (a) in excess of planned capital expenditures budgeted for the current fiscal year and as reasonably

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deemed to be necessary by the Company for next fiscal year consistent with prior practice or (b) which require any payment that may or will extend beyond the Closing Date;

          (h)     the Company has not instituted or settled any material Legal Proceeding resulting in or which may result in a loss of revenue in excess of $10,000 individually or in amounts exceeding $50,000 in the aggregate;

          (i)     the Company has not granted any license or sublicense of any rights under or with respect to any Intellectual Property or Technology of the Company;

          (j)     the Company has not made any loan to, or entered into any other transaction with, any of its unitholders, Affiliates, officers, directors, partners or employees; and

          (k)     the Company has not agreed, committed, arranged or entered into any understanding to do anything set forth in this Section 4.8.

          Section 4.9      Taxes .

          (a)     (i) All income, franchise and all other Tax Returns required to be filed by or on behalf of the Company, any Subsidiary or any affiliated, consolidated, combined or unitary group of which the Company or any Subsidiary is or was a member have been duly and timely filed with the appropriate Taxing Authority in all jurisdictions in which such Tax Returns are required to be filed (after giving effect to any valid extensions of time in which to make such filings), and all such Tax Returns are true, complete and correct in all material respects; and (ii) all income, franchise and other Taxes payable by or on behalf of the Company, any Subsidiary or any affiliated, consolidated, combined or unitary group of which the Company or any Subsidiary is or was a member have been fully and timely paid.

          (b)     All deficiencies asserted or assessments made as a result of any examinations by any Taxing Authority of the Tax Returns of, or including, the Company or any Subsidiary have been fully paid, and there are no audits or investigations of the Company or any Subsidiary by any Taxing Authority in progress, nor has the Company or any Subsidiary received any written notice from any Taxing Authority that it intends to conduct such an audit or investigation.

          (c)     The Company has complied with all applicable Laws relating to the payment and withholding of Taxes and has duly and timely withheld and paid over to the appropriate Taxing Authority all amounts required to be so withheld and paid under all applicable Laws.

          (d)     There are no Liens for Taxes upon the Purchased Assets.

          (e)     None of the Purchased Assets is (i) property required to be treated as being owned by another Person pursuant to the provisions of Section 168(f)(8) of the Internal Revenue Code of 1954, as amended and in effect immediately prior to the enactment of the Tax Reform Act of 1986, (ii) ”tax-exempt use property” within the meaning of Section 168(h)(1) of the Code, (iii) ”tax-exempt bond financed property” within the meaning of Section 168(g) of the Code, (iv) ”limited use property” within the meaning of Rev. Proc. 2001-28, (v) subject to

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Section 168(g)(1)(A) of the Code, or (vi) subject to any provision of state, local or foreign Law comparable to any of the provisions listed above.

          Notwithstanding the foregoing, for purposes of this Section 4.9, any reference to the Company or any Subsidiary shall be deemed to include any Person that merged with or was liquidated into the Company or any Subsidiary.

          Section 4.10      Real Property .

          (a)      Company Disclosure Schedule 4.10(a)(i)(A) sets forth a complete list of (i) all real property and interests in real property, including easements appurtenant thereto, owned in fee by the Company (individually, an “ Owned Property ” and collectively, the “ Owned Properties ”), and (ii) all real property and interests in real property leased, licensed or subleased by the Company as lessee or lessor, licensee or licensor, including a description of each such real property lease (including the name of the third party lessor or lessee, the date of the lease or sublease and all amendments thereto and the manner in which such interest is held) and the property encumbered thereby (individually, a “ Real Property Lease ” and collectively, the “ Real Property Leases ” and, together with the Owned Properties and all buildings, fixtures and improvements thereon, being referred to herein individually as a “ Company Property ” and collectively as the “ Company Properties ”). The Company has good and marketable fee title to all Owned Property, free and clear of all Liens of any nature whatsoever, except those Liens set forth on Company Disclosure Schedule 4.10(a)(i)(A) . The Company Properties constitute all interests in real property currently used, occupied or currently held for use in connection with the Business of the Company and which are necessary for the continued operation of the Business of the Company. Except as set forth on Company Disclosure Schedule 4.10(a)(i)(B) , all of the Company Properties and buildings, fixtures and improvements thereon owned or leased by the Company taken as a whole are in reasonably good operating condition (ordinary wear and tear excepted), and all mechanical and other systems located thereon, taken as a whole, are in reasonably good operating condition, in each case in all material respects, such that the Company’s biodiesel plant may be operated according to plant specifications and applicable environmental, safety and legal standards. Except as set forth on Company Disclosure Schedule 4.10(a)(ii) and except as could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect with respect to the Company, none of the improvements located on the Company Properties constitute a legal non-conforming use or otherwise require any special dispensation, variance or special permit under any Laws. The Company has delivered to Purchaser true, correct and complete copies of (i) all deeds, title reports and surveys for the Owned Properties and (ii) the Real Property Leases, together with all amendments, modifications or supplements, if any, thereto. The Company Properties are not subject to any leases, rights of first refusal, options to purchase or rights of occupancy, except the Real Property Leases and those set forth on Company Disclosure Schedule 4.10(a)(iii) .

          (b)      (i) the Company has a valid, binding and enforceable leasehold interest or license under each of the Real Property Leases under which it is a lessee or licensee, free and clear of all Liens, (ii) each of the Real Property Leases is in full force and effect, (iii) the Company is not in default under any Real Property Lease, and no event has occurred and no circumstance exists

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which, if not remedied, and whether with or without notice or the passage of time or both, would result in such a default, and (iv) the Company has not received or given any notice of any default or event that with notice or lapse of time, or both, would constitute a default by the Company under any of the Real Property Leases and, to the Knowledge of the Company, no other party is in default thereof, and no party to any Real Property Lease has exercised any termination rights with respect thereto.

          (c)     The Company has all material certificates of occupancy and Permits of any Governmental Authority necessary or useful for the current use and operation of each Company Property, and the Company has fully complied with all material conditions of the Permits applicable to them. No material default or violation, or event that with the lapse of time or giving of notice or both would become a material default or violation, has occurred in the due observance of any Permit. The Company has not received any notice that any certificate of occupancy or Permit will not be renewed at the end of its current term, and the Company is not aware of any facts that would cause a denial of any renewal application.

          (d)     There does not exist any actual or, to the Knowledge of the Company, threatened or contemplated condemnation or eminent domain proceedings that affect any Company Property or any part thereof, and the Company has not received any notice, oral or written, of the intention of any Governmental Authority or other Person to take or use all or any part thereof.

          (e)     Except as set forth on Company Disclosure Schedule 4.10(e) , the Company has not received any notice from any insurance company that has issued a policy with respect to any Company Property requiring performance of any structural or other repairs or alterations to such Company Property.

          (f)     The Company does not own, hold, and is not obligated under and is not a party to, any option, right of first refusal or other contractual right to purchase, acquire, sell, assign or dispose of any real estate or any portion thereof or interest therein. None of the Company Properties is subject to any option, right of first refusal or other contractual right to purchase, acquire, sell or dispose of same.

          (g)     With respect to each parcel of the Company Property and the buildings, structures, improvements and fixtures thereon:

          (i)     Except for assessments occurring on a regular basis in accordance with applicable Law, there is no pending or, to the Knowledge of the Company, contemplated reassessment of any parcel included in the Company Property that is reasonably expected to increase the real estate tax assessment for such properties.

          (ii)     There is no pending, or to the Knowledge of the Company, contemplated proceeding to rezone any parcel of the Company Property. The uses for which each parcel of the Company Property is zoned do not restrict, or in any manner impair, the current use of the Company Property. Neither the Company nor its Subsidiaries have received notice of any violation of any applicable zoning law, regulation or other Legal Requirement, related to or affecting the Company Property.

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          (iii)         All buildings, structures and other improvements on the Company Property, including but not limited to driveways, out-buildings, landscaped areas and sewer systems, and all means of access to the Company Property, are located completely within the boundary lines of the Company Property and do not encroach upon or under the property of any other Person or entity. No buildings, structures or improvements constructed on the property of any other Person encroach upon or under the Company Property.

          (iv)         The use of the Company Properties, or any portion thereof, in the Business does not violate or conflict with (A) any covenants, conditions or restrictions applicable thereto or (B) the terms and provisions of any contractual obligations relating thereto.

          (v)          The Company or its Subsidiaries have good and valid rights of ingress and egress to and from all of the Company Property (including between separate parcels included within the Company Property) from and to any rail lines, rail spurs, pipelines and the public street systems for all usual street, road, shipping, transport, storage, docking and utility purposes and other purposes necessary or incidental to the operation of the Business.

          (vi)         Except as set forth on Company Disclosure Schedule 4.10(g)(vi) , all utilities required for or useful in the operation of the Business either enter the Company Property through adjoining streets and roads, or if they pass through adjoining private land, they do so in accordance with valid easements. All necessary utilities (including without limitation, water, sewer, electricity and telephone facilities) are available to the Company Property and there exists, to the Knowledge of the Company, no proposed limitation in or reduction of the quality or quantity of utility services to be furnished to the Company Property. Adequate sewage and water systems and connections are available to the Company Property as currently operated.

          Section 4.11      Tangible Personal Property .

          (a)          The Company has good and marketable title to all of the items of tangible personal property used in the Business by the Company, free and clear of any and all Liens, other than as set forth on Company Disclosure Schedule 4.11(a) . Any Liens, including without limitation those set forth on Company Disclosure Schedule 4.11(a) , shall be removed and the tangible personal property transferred free and clear of Liens. All such items of tangible personal property taken as a whole are in reasonably good operating condition (ordinary wear and tear excepted) and are suitable for the purposes used, in each case in all material respects, except for repairs, maintenance and replacements necessary in the Ordinary Course of Business.

          (b)           Company Disclosure Schedule 4.11(b) sets forth all leases of personal property (“ Personal Property Leases ”) involving annual payments in excess of $10,000 relating to personal property used by the Company in the Business or to which the Company is a party or by which the properties or assets of the Company is bound. All of the items of personal property under the Personal Property Leases taken as a whole are in reasonably good operating condition and repair (ordinary wear and tear excepted) and are suitable for the purposes used, and such property is in all material respects in the condition required of such property by the terms of the lease applicable thereto during the term of the lease, in each case, except for repairs, maintenance and replacements necessary in the Ordinary Course of Business. The Company has delivered to

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Purchaser true, correct and complete copies of the Personal Property Leases, together with all amendments, modifications or supplements thereto.

          (c)          Except as could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect with respect to the Company, (i) the Company has a valid, binding and enforceable leasehold interest under each of the Personal Property Leases under which it is a lessee and (ii) each of the Personal Property Leases is in full force and effect and the Company has not received or given any notice of any default or event that with notice or lapse of time, or both, would constitute a default by the Company under any of the Personal Property Leases. To the Knowledge of the Company, no other party is in default under any of the Personal Property Leases, and no party to any of the Personal Property Leases has exercised any termination rights with respect thereto.

          Section 4.12      Intellectual Property .

          (a)           Company Disclosure Schedule 4.12(a) sets forth an accurate and complete list of all Patents, registered Marks, pending applications for registration of Marks, unregistered Marks, registered Copyrights, pending applications for registration of Copyrights and Internet domain names owned or registered to the Company and included in the Intellectual Property. Company Disclosure Schedule 4.12(a) lists (i) the record owner of each such item of Intellectual Property, (ii) the jurisdictions in which each such item of Intellectual Property has been issued or registered or in which any such application for issuance or registration has been filed and (iii) the registration or application date, as applicable.

          (b)          The Company is the sole and exclusive owner of all right, title and interest in and to, or has the valid and continuing right to use, all of the Intellectual Property listed in Company Disclosure Schedule 4.12(a) . The Company is the sole and exclusive owner of, or has valid and continuing rights to use, sell, license and otherwise commercially exploit, as the case may be, all other Intellectual Property and all Technology as the same are used, sold, licensed and otherwise commercially exploited in the Business, free and clear of all Liens or obligations to others.

          (c)          The Intellectual Property, the Technology, the manufacturing, licensing, marketing, importation, offer for sale, sale or use of any products and services in connection with the Busi