FIFTH AMENDMENT AGREEMENTLLC Membership Agreement |
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Synthetic American Fuel Enterprises II, LLC | Marriott Hotel Services, Inc. | Serratus LLC. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here. |
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Exhibit 10
FIFTH AMENDMENT AGREEMENT
Synthetic American Fuel Enterprises II, LLC
This Fifth Amendment Agreement (“Fifth Amendment”) is made and entered into as of June 30, 2005, by and among Synthetic American Fuel Enterprises Holdings, Inc. (“Holdings”), Marriott Hotel Services, Inc. (“MHSI”) and Serratus LLC (“Buyer”).
WITNESSETH:
WHEREAS, Holdings, MHSI and Buyer entered into an Agreement for Purchase of Membership Interest in Synthetic American Fuel Enterprises II, LLC (the “Company”) dated as of January 28, 2003, as amended by Amendment Agreement dated as of June 20, 2003, Third Amendment Agreement dated as of October 6, 2004, and Fourth Amendment Agreement dated as of April 29, 2005 (the “Purchase Agreement”);
WHEREAS, Holdings, MHSI and Buyer entered into an Amended and Restated Limited Liability Company Agreement of the Company dated as of January 28, 2003, as amended by Amendment Agreement dated as of June 20, 2003, Second Amendment Agreement dated as of September 3, 2004, Third Amendment Agreement dated as of October 6, 2004, and Fourth Amendment Agreement dated as of April 29, 2005 (the “LLC Agreement”); and
WHEREAS, the parties desire to amend the LLC Agreement and the Purchase Agreement as provided herein;
NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
ARTICLE I
AMENDMENTS TO LLC AGREEMENT
Amendments to Section 10.8.
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(a) |
Section 10.8(a) of the LLC Agreement is deleted in its entirely and replaced with the following: |
“(a) (i) Upon the occurrence of a Tax Event (other than a Tax Event described in the last sentence of the definition of “Tax Event”), (ii) upon the exercise by Buyer of its right to defer payments for low volume pursuant to Section 2.6 of the Purchase Agreement for the fourth time (the “Fourth Deferral”), (iii) on November 30, 2005, or December 31, 2005 (each, a “Put Date”), (iv) upon the occurrence of a Tax Event described in the last sentence of the definition of “Tax Event,” or (v) upon the issuance by the IRS at any time prior to November 30, 2005, of a Form 1787, “Notice of Beginning of Administrative Proceeding,” (or issuance by the IRS of a notice having similar effect) with respect to the Company for tax years ending after March 31, 2001 (an “Audit Event”), Buyer shall have the option, exercisable by delivery of written notice thereof to the Company within 60 days of such Tax Event or Fourth Deferral, in the case of an exercise pursuant
