CONTRIBUTION AGREEMENT FOR INTERESTS IN U. S. PREMIUM BEEF, LLC

 

CONTRIBUTION AGREEMENT

FOR INTERESTS IN

U. S. PREMIUM BEEF, LLC

 

BY AND BETWEEN

U.S. PREMIUM BEEF, LLC

AND

BRAWLEY BEEF, LLC

 

Dated as of May 30, 2006

                                                                                                                                                           

 

 

 

 

U.S. PREMIUM BEEF, LLC	CONTRIBUTION AGREEMENT
	BRAWLEY BEEF, LLC

TABLE OF CONTENTS

	Page
ARTICLE 1 ACQUISITION OF MEMBERSHIP INTERESTS	3
1.1       Acquisition of Membership Interests by Brawley Beef.	3
1.2       Consideration.	3
1.3       Deliveries at Closing.	3
1.4       Closing.	4
ARTICLE 2 REPRESENTATIONS AND WARRANTIES OF BRAWLEY BEEF	4
2.1       Representations and Warranties of Brawley Beef.	4
2.2       Organization; Power and Authority.	4
2.3       Authorization and Enforceability.	5
2.4       No Conflicts.	5
2.5       Organization and Ownership of Shares of Subsidiaries; Affiliates.	5
2.6       No Additional Consents Required.	6
2.7       Litigation Affecting This Transaction.	6
2.8       No Material Misstatements or Omissions; Disclosure.	6
2.9       Licenses, Permits.	6
ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF USPB	6
3.1       Representations and Warranties of USPB.	6
3.2       Organization, Power and Authority.	6
3.3       Authorization and Enforceability.	7
3.4       No Conflicts.	7
3.5       No Consents.	7
3.6       Outstanding Membership Interest; Validly Issued.	7
3.7       No Material Misstatements or Omissions; Disclosure.	8
ARTICLE 4 COVENANTS OF THE PARTIES	8
4.1       Cooperation and Best Efforts to Implement Agreement.	8
4.2       Conduct of USPB Business.	8
4.3       Notices and Consents.	8
4.4       Notification.	9
4.5       Disclosure and Exceptions.	9
4.6       Activities of Brawley Beef Deemed Not to Compete With USPB.	9
ARTICLE 5 CONDITIONS TO CLOSING	9
5.1       Conditions Precedent to Obligations of USPB at Closing.	9
5.2       Conditions Precedent to Obligations of Brawley Beef at Closing.	10
5.3       Termination of Agreement.	11
5.4       Effect of Termination.	12

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U.S. PREMIUM BEEF, LLC	CONTRIBUTION AGREEMENT
	BRAWLEY BEEF, LLC

 

ARTICLE 6 INDEMNIFICATION	12
6.1       Survival of Representations, Warranties and Indemnities.	12
6.2       Indemnification.	12
6.3       Third-Party Claims.	12
6.4       Sole Remedy.	13
ARTICLE 7 MISCELLANEOUS	14
7.1       Notices.	14
7.2       Entire Agreement.	15
7.3       Waivers and Amendments.	15
7.4       Assignability; Binding Effect.	15
7.5       Governing Law; Submission to Jurisdiction Waiver of Jury Trial.	15
7.6       Counterparts.	16
7.7       Further Assurances.	16
7.8       Severability.	16
7.9       Exhibits.	16
7.10     Captions.	16
7.11     Interpretation.	16
7.12     Third Parties.	17
7.13     Publicity.	17
7.14     Knowledge.	17
ARTICLE 8 DEFINED TERMS	17
8.1       Definitions.	17

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U.S. PREMIUM BEEF, LLC	CONTRIBUTION AGREEMENT
	BRAWLEY BEEF, LLC

CONTRIBUTION AGREEMENT
FOR INTERESTS
IN U.S. PREMIUM BEEF, LLC

This Agreement to acquire interests in U.S. Premium Beef, LLC (this "Agreement"), dated as of May 30, 2006 (the "Effective Date"), is entered into by and between Brawley Beef, LLC, a California limited liability company ("Brawley Beef"), and U.S. Premium Beef, LLC, a Delaware limited liability company ("USPB") (each of Brawley Beef and USPB, a "Party" and together, the "Parties").

RECITALS:

WHEREAS, Brawley Beef desires to acquire 44,160 Class A and 44,160 Class B Units of USPB, and USPB desires to acquire 44,160 limited partnership units of National Beef California, LP as part of a series of transactions in which Brawley Beef will transfer certain assets and certain liabilities to National Beef California, LP, and USPB will transfer the limited partnership units acquired from Brawley Beef to National Beef Packing Company, LLC; and

WHEREAS, capitalized terms used but not defined in this Agreement shall have the respective meanings ascribed to the terms in Article 8 of this Agreement.

NOW, THEREFORE, in consideration of the mutual covenants described below and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby covenant and agree as follows:

ARTICLE 1
ACQUISITION OF MEMBERSHIP INTERESTS

1.1                  Acquisition of Membership Interests by Brawley Beef.

Upon the terms and subject to the conditions of this Agreement at the Closing, USPB shall issue 44,160 Class A Units and 44,160 Class B Units of USPB to Brawley Beef (the "Brawley Membership Interest"), fully paid and free and clear of any Lien except for the security interest created pursuant to that certain Pledge Agreement of even date with this Agreement, in exchange for and Brawley Beef's transfer to USPB of the Consideration stated in Section 1.2.

1.2                  Consideration.

In consideration of the issuance and sale of the 44,160 Class A Units and 44,160 Class B Units to Brawley Beef as set forth in Section 1.1, Brawley Beef shall transfer to USPB 44,160 limited partnership units of National Beef California, LP, fully paid and free and clear of any Lien except for the security interest created pursuant to that certain Pledge Agreement of even date with this Agreement.

1.3                  Deliveries at Closing.

At the Closing Date:

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U.S. PREMIUM BEEF, LLC	CONTRIBUTION AGREEMENT
	BRAWLEY BEEF, LLC

(1)               Brawley Beef will deliver to USPB 44,160 limited partnership units in National Beef California, LP;

(2)               USPB shall issue 44,160 Class A Units and 44,160 Class B Units of USPB to Brawley Beef, and the Brawley Membership Interest will be duly and validly authorized and issued, fully paid subject to the provisions of the USPB Limited Liability Company Agreement and the security interest created pursuant to that certain Pledge Agreement of even date with this Agreement;

(3)               USPB shall provide a certificate that the records of USPB that reflect Brawley Membership Interest of 44,160 Class A Units and 44,160 Class B Units;

(4)               Brawley Beef will execute and accept the Limited Liability Company Agreement of USPB attached as Exhibit A;

(5)               Brawley Beef will deliver an executed Application For Class A and/or Class B Membership form attached as Exhibit B;

(6)               Brawley Beef will deliver an executed Uniform Cattle Delivery and Marketing Agreement attached as Exhibit C; and

(7)               Each of the Parties shall deliver to the other Party certificates, instruments and documents reasonably requested by the other Parties to effectuate the transactions contemplated by this Agreement.

1.4                  Closing.

Subject to satisfaction or waiver of the conditions set forth in Sections 5.1 and 5.2, the closing shall take place at 10:00 a.m., Kansas City, Missouri time, at the offices of Blackwell Sanders Pepper Martin LLP, 4801 Main Street, Kansas City, Missouri, on the date the closing for the transaction under the Contribution Agreement dated as of May 19, 2006, by and among Brawley Beef, LLC and National Beef California, LP and National Beef Packing Company, LLC (the "Brawley-NBPCA Agreement") takes place (the "Closing"), (the time and date referred to in this Agreement as the "Closing Date").

ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF BRAWLEY BEEF

2.1                  Representations and Warranties of Brawley Beef.

Brawley Beef represents and warrants to USPB on the Effective Date of this Agreement and at the Closing the provisions in Sections 2.2 through 2.9 are true and can be relied upon by USPB to accept the contribution from Brawley Beef in exchange for issuing the Membership Interest in USPB to Brawley Beef under this Agreement.

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U.S. PREMIUM BEEF, LLC	CONTRIBUTION AGREEMENT
	BRAWLEY BEEF, LLC

2.2                  Organization; Power and Authority.

Brawley Beef is a limited liability company that is duly organized, validly existing and in good standing under the laws of California, and is duly qualified to do business and is in good standing in each jurisdiction in which the qualification is required by law, other than those jurisdictions as to which the failure to be so qualified or in good standing could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on Brawley Beef.  Brawley Beef has the limited liability company power and authority to transact the business it transacts and proposes to transact, to execute and deliver this Agreement and the other Transaction Documents to which it is a party and to perform the conditions and obligations of this Agreement and the Transaction Documents.

2.3                  Authorization and Enforceability.

The execution of this Agreement has been duly authorized by all necessary limited liability company action of Brawley Beef, each Transaction Document at Closing constitutes a legal, valid and binding obligation of Brawley Beef, enforceable against it in accordance with its terms, except as enforceability may be limited by: (1) applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally; and (2) general principles of equity (regardless of whether the enforceability is considered in a proceeding in equity or at law).

2.4                 No Conflicts.

Neither the execution, delivery and performance of any of the Transaction Documents nor the consummation of any of the transactions contemplated under the Transaction Documents by Brawley Beef will:

(1)               conflict with or result in any violation of or constitute a breach of any of the terms or provisions of, or result in the acceleration of any obligation under, or constitute a default under any provision of, the certificate of formation or operating agreement or other organizational document of Brawley Beef, or, subject to the receipt of the consents referenced in Section 2.6 below, any Material mortgage, bond, indenture, agreement, franchise, license, permit or other instrument or obligation to which any of Brawley Beef is a party or subject or by which any of its assets or properties may be bound;

(2)               result in the creation of any Lien upon any of the assets or properties of Brawley Beef; or

(3)               violate any Legal Requirement against, affecting or binding upon, Brawley Beef or upon any of its assets or properties.

2.5                  Organization and Ownership of Shares of Subsidiaries; Affiliates.

(a)                Members and Owners of Brawley Beef.  Schedule 2.5 lists the Members of and all Persons with an ownership interest in Brawley Beef.  Brawley Beef has no equity interest in any other Person.

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U.S. PREMIUM BEEF, LLC	CONTRIBUTION AGREEMENT
	BRAWLEY BEEF, LLC

(b)               No Outstanding Rights, Warrants or Options.  There are no outstanding obligations, warrants, options or other rights to subscribe for or purchase from Brawley Beef, or other contracts or commitments providing for the issuance of or the granting of rights to acquire, any membership, limited partnership or other equity interests of or in Brawley Beef, or any securities or other instruments convertible into or exchangeable for the foregoing.  There are no outstanding or authorized equity appreciation, phantom equity, profit participation, or similar rights with respect to Brawley Beef, and there are no voting trusts, proxies, or other agreements or understandings with respect to the voting of the Membership Interests of Brawley Beef.

2.6                  No Additional Consents Required.

No consent, approval or authorization of, or registration, filing or declaration with, any Governmental Authority or any other Person is required in connection with the execution, delivery and performance by Brawley Beef of any of the Transaction Documents.

2.7                  Litigation Affecting This Transaction.

Except as provided on Schedule 2.7, there are no actions, investigations, demands, suits or proceedings pending against or affecting the validity or the rights of Brawley Beef to enter into the Transaction Documents or consummate the transactions contemplated by the Transaction Documents, and, to the Knowledge of Brawley Beef, there are no actions, investigations, demands, suits or proceedings threatened against or affecting the validity or the rights of Brawley Beef to enter into the Transaction Documents or consummate the transactions contemplated by the Transaction Documents.

2.8                 No Material Misstatements or Omissions; Disclosure.

No representation or warranty of Brawley Beef in this Agreement contains or will contain any untrue statement of a Material fact nor shall the representations and warranties taken as a whole omit any statement necessary in order to make any Material statement contained in this Agreement not misleading.

2.9                  Licenses, Permits.

Except as set forth in Schedule 2.9, to the Knowledge of Brawley Beef, all licenses and permits necessary to meet the obligations under the Transaction documents have been met by Brawley Beef or its members or entities obligated to deliver cattle pursuant to the Uniform Delivery and Marketing Agreement (Even Slots), and are not the subject of any governmental inquiry, investigation, complaint or similar action.

ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF USPB

3.1                  Representations and Warranties of USPB.

USPB represents and warrants to Brawley Beef on the Effective Date of this Agreement and at the Closing the provisions in Sections 3.2 to 3.7 are true and can be relied upon by Brawley Beef.

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