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GREEN PLAINS RENEWABLE ENERGY, INC. | COFINA FINANCIAL, LLC | FNBO ETHANOL HOLDINGS, LLC | Green Plains Holdings LLC | MLIC ASSET HOLDINGS LLC | RBF Acquisition VI, LLC | US BioEnergy Corporation | VeraSun Energy Corporation | VeraSun Ord, 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 10.1
Membership Interest Purchase Agreement (RBF Acquisition VI, LLC) dated as of May 20, 2009 by and between THE ENTITIES LISTED ON SCHEDULE 1 HERETO, AgStar Financial Services, PCA, as Seller Agent, and Green Plains Holdings LLC
Table of Contents page Other Definitions and Interpretive Matters REPRESENTATIONS AND WARRANTIES OF SELLERS Organization and Good Standing Ownership of Membership Interests Representations and Warranties with Respect to the Company REPRESENTATIONS AND WARRANTIES OF BUYER Organization and Good Standing ACTIONS PRIOR TO THE CLOSING DATE Operations Prior to the Closing Date 637 Registrations; Alcohol Fuel Plant Permits Pre-Startup Capital and Plant Maintenance and Repairs Tax Credits; Tax Recapture Liabilities CONDITIONS PRECEDENT TO OBLIGATIONS OF BUYER TO CLOSE Central City Purchase Agreement CONDITIONS PRECEDENT TO THE OBLIGATION OF EACH SELLER TO CLOSE
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Central City Purchase Agreement Deductible; Limitation Amount; Indemnification Escrow Governing Law; Consent to Jurisdiction and Venue; Jury Trial Waiver Parties in Interest; No Third Party Beneficiaries
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SCHEDULES
Schedule 1 Sellers Schedule 5.7(a) Disclosure Regarding Organization Schedule 5.7(d) Litigation Schedule 5.7(e) Disclosure of Liabilities and Liens Schedule 5.7(f) Tax Matters Schedule 5.7(h) Contracts Schedule 5.7(i) Real Property Schedule 5.7(j) Environmental Matters Schedule 5.7(k) Intellectual Property Matters Schedule 7.2 Excluded Assets
EXHIBITS
Exhibit A Credit Agreement
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Membership Interest Purchase Agreement
This Membership Interest Purchase Agreement (this “ Agreement ”) is made as of May 20, 2009 (the “ Effective Date ”), by and among each of the entities identified as a seller on Schedule 1 attached hereto (each a “ Seller ” and collectively “ Sellers ”), Seller Agent, and Green Plains Holdings LLC (“ Buyer ”). Capitalized terms used herein and not otherwise defined herein have the meanings set forth in Article 1 . Recitals Whereas , Sellers collectively own all of the issued and outstanding membership interests of RBF Acquisition VI, LLC, a Delaware limited liability company (the “ Company ”); Whereas , VeraSun Energy Corporation, a South Dakota corporation (“ VeraSun ”), US BioEnergy Corporation, a South Dakota corporation (“ US Bio ”), and VeraSun Ord, LLC (“ Ord ,” and together with VeraSun and US Bio, the “ VeraSun Entities ”) were engaged in the business of producing ethanol and its co-products, including distillers grains, at the Facility (such business, as conducted by the VeraSun Entities, the “ Business ”); Whereas , US Bio is a direct wholly-owned subsidiary of VeraSun and Ord is an indirect wholly-owned subsidiary of VeraSun; Whereas , on October 31, 2008 (the “ Petition Date ”), VeraSun and its direct and indirect subsidiaries (including US Bio and Ord) filed a voluntary petition for relief (the “ Filings ”) commencing cases under chapter 11 of the Bankruptcy Code in the United States Bankruptcy Court for the District of Delaware (the “ Bankruptcy Case ”); Whereas , the Company purchased substantially all of the assets and assumed certain liabilities of the VeraSun Entities relating to the Business pursuant to Sections 363 and 365 of the Bankruptcy Code under the Order issued in the Bankruptcy Case and certain additional sale Orders (collectively, the “ Sale Order ”) and upon the terms and conditions of that certain Asset Purchase Agreement by and among VeraSun, US Bio, Ord and the Company, dated April 2, 2009(the “ Bankruptcy Purchase Agreement ”); and Whereas , Sellers desire to sell to Buyer all of the issued and outstanding membership interests in the Company, and Buyer desires to purchase from Sellers all of the issued and outstanding membership interests in the Company, upon the terms and conditions hereinafter set forth. Now, Therefore , in consideration of the premises and the mutual promises herein made, and in consideration of the representations, warranties and covenants herein contained, the Parties agree as follows: Definitions . For purposes of this Agreement, the following terms have the meanings specified or referenced below. “ 637 Registrations ” has the meaning set forth in Section 7.4 . “ Action ” means any legal action, suit or arbitration, or any inquiry, proceeding (including any civil, criminal, administrative or appellate proceeding), hearing, audit or investigation, brought, conducted or heard by or before any court or other Governmental Authority. “ Affiliate ” of any particular Person means any other Person or Persons controlling, controlled by, or under common control with such particular Person, where “ control ” means the possession, directly or indirectly, of the power to direct the management and policies of a Person whether through the ownership of voting securities, contract, or otherwise. “ Agreement ” has the meaning set forth in the introductory paragraph. “ AgStar ” means AgStar Financial Services, PCA. “ Alcohol Fuel Permits ” has the meaning set forth in Section 7.4 . “ Allocated Other Liability Amount ” has the meaning set forth in Section 8.1 .
“ Allocated Tax Amount ” has the meaning set forth in Section 8.1 . “ Assignment ” means the assignment by a Seller to Buyer of the Membership Interests owned by such Seller in form and substance reasonably acceptable to Buyer and Seller Agent. “ Bankruptcy Case ” has the meaning set forth in the recitals. “ Bankruptcy Code ” means Title 11 of the United States Code, Sections 101 et seq . “ Bankruptcy Purchase Agreement ” has the meaning set forth in the recitals. “ Business ” has the meaning set forth in the recitals. “ Business Day ” means any day of the year on which national banking institutions in New York are open to the public for conducting business and are not required or authorized by law to close. “ Buyer ” has the meaning set forth in the introductory paragraph. “ Cash Purchase Price ” has the meaning set forth in Section 3.1(c) . “ Central City Purchase Agreement ” means the Membership Interest Purchase Agreement dated on or about the date of this Agreement relating to the sale to Buyer of all outstanding membership interests in RBF Acquisition II, LLC. “ Closing ” has the meaning set forth in Section 4.1 . “ Closing Date ” means the date and time as of which the Closing occurs as set forth in Section 4.1 . “ Code ” means the Internal Revenue Code of 1986, as amended. “ Company ” has the meaning set forth in the recitals. “ Contract ” means any agreement, contract, obligation, promise, license, note, lease or undertaking (whether written or oral) that is legally binding. “ Deposit Escrow Amount ” means $250,000. “ Deposit Escrow Agreement ” means the Refundable Deposit and Escrow Agreement dated as of even date herewith by and among Buyer, Seller Agent and Escrow Agent. “ Effective Date ” has the meaning set forth in the introductory paragraph. “ Environmental, Health and Safety Laws ” means any Legal requirements concerning environmental, health or safety matters. “ Escrow Agent ” means Springdale Title Company. “ Excluded Assets ” has the meaning set forth in Section 7.2 . “ Facility” means the dry mill ethanol plant located near Ord, Nebraska including the Owned Real Property on which such facility is located and all buildings, structures, improvements, easements and other property related thereto. “ Facility Maintenance Agreement ” means the Management Services Agreement dated March 25, 2009, by and between ICM Inc. and the Company. “ Filings ” has the meaning set forth in the recitals. “ Financing Documents ” means (i) a credit agreement by and between the Company and AgStar, as agent, and other banks named therein, substantially in the form of the Credit Agreement attached as Exhibit A hereto, as the same may be modified by mutual agreement of the parties thereto on or prior to the Closing Date, together with (ii) all other documents and instruments contemplated thereby.
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“ Finished Ethanol ” means 190 proof ethanol, 200 proof ethanol and denatured ethanol. “ Governmental Authority ” means any United States federal, state or local or any foreign government, governmental authority or regulatory or administrative authority or any court, tribunal or judicial body having jurisdiction. “ Hazardous Substance ” means any “pollutant,” “contaminant,” “hazardous waste,” “hazardous material,” or “hazardous substance” under any Environmental, Health and Safety Laws. “ Indemnification Escrow Agent ” has the meaning set forth in Section 3.1(c) . “ Indemnification Escrow Agreement ” has the meaning set forth in Section 3.1(c) . “ Indemnification Escrow Amount ” has the meaning set forth in Section 3.1(c) . “ Legal Requirement ” means any federal, state, provincial, local, municipal, foreign, international, multinational, or other administrative Order, constitution, law, ordinance, principle of common law, regulation, statute or treaty. “ Liability ” means any debt, losses, claim, damage, demand, fine, judgment, penalty, deficiency, liability or obligation (whether known or unknown, asserted or unasserted, absolute or contingent, accrued or unaccrued, liquidated or unliquidated, or due or to become due). “ Lien ” means any mortgage, pledge, lien, easement, charge, security interest, option or other encumbrance of any kind. “ Material Adverse Effect ” means a material adverse change in or material adverse effect on the assets of the Company or the Business, in each case taken as a whole, but excluding (a) any change or effect to the extent that it results from or arises out of (i) the Filings; (ii) the execution and delivery of this Agreement or the announcement thereof or the pendency or consummation of the transactions contemplated hereby; (iii) geopolitical conditions or any outbreak or escalation of hostilities or acts of terrorism or war; (iv) any hurricane, tornado, flood, earthquake or other natural disaster; (v) changes in (or proposals to change) Legal Requirements or accounting regulations or principles; (vi) any action contemplated by this Agreement or taken at the request of Buyer; (vii) changes in prices or costs of commodities or supplies; (viii) failure of the Company to meet any internal or published projections, forecasts, estimates or predictions in respect of financial or operating metrics; or (ix) any motion, application, pleading or Order filed under or in connection with the Bankruptcy Case; and (b) any change or effect generally applicable to (i) the industries and markets in which the Business operates or proposes to operate or (ii) economic or political conditions or the securities or financial markets in any country or region; provided, however, that in the cases of clauses (b)(i) and (b)(ii), only to the extent such change or effect does not affect the assets of the Company or the Business, taken as a whole, in a disproportionate manner relative to the other participants in the industries and markets in which the Business operates. “ Membership Interests ” means all of the issued and outstanding membership interests of the Company. “ Ord ” has the meaning set forth in the recitals. “ Order ” means any award, writ, injunction, judgment, order or decree entered, issued, made, or rendered by any Governmental Authority. “ Owned Real Property ” means the real property legally described in Schedule 5.7(i) . “ Party ” or “ Parties ” means, individually or collectively, Buyer, Seller Agent and Sellers. “ Periodic Taxes ” has the meaning set forth in Section 8.1 . “ Permits ” means all franchises, grants, authorizations, licenses, permits, easements, variances, exceptions, consents, certificates, approvals, clearances and Orders. “ Person ” means any individual, corporation (including any non-profit corporation), partnership, limited liability company, joint venture, estate, trust, association, organization or other entity or Governmental Authority. “ Petition Date ” has the meaning set forth in the recitals.
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“ Proceeding ” means any action, arbitration, audit, hearing, investigation, litigation, or suit (whether civil, criminal, administrative or investigative) commenced, brought, conducted, or heard by or before, or otherwise involving, any Governmental Authority. “ Purchase Price ” has the meaning set forth in Section 3.1 . “ RBF VIII ” means RBF Acquisition VIII, LLC, a Delaware limited liability company and an Affiliate of the Company. “ Release ” means any past or present spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping or disposing of a Hazardous Substance into the environment. “ Representative ” means, with respect to a particular Person, any director, officer, employee, agent, consultant, advisor or other representative of such Person, including legal counsel, accountants and financial advisors. “ Retained Corn Inventory ” means 20,000 bushels of #2 yellow corn of merchantable quality or such different amount as is stored at the Facility as of the Closing Date. “ Retained Corn Price ” means an aggregate amount determined by multiplying (i) 20,000 (or whatever number of bushels constitutes the Retained Corn Inventory) by (ii) a price per bushel equal to (A) the Chicago Board of Trade closing price per bushel for the corn as of the Business Day immediately preceding the Closing Date, less (ii) $0.15 per bushel. “ Sale Order ” has the meaning set forth in the recitals. “ Securities Act ” means the Securities Act of 1933, as amended, and the rules and regulations of the United States Securities and Exchange Commission promulgated thereunder. “ Seller Agent ” means AgStar and its successors in such capacity. “ Seller’s Knowledge ” means, with respect to each Seller and with respect to any matter in question, the actual knowledge (excluding, among other things, constructive and imputed knowledge) of Mark Schmidt or Rick Kjolsing with respect to such matter, without making any independent investigation or inquiry or verification. Such words signify only that no information has come to their attention in connection with the transaction contemplated by this Agreement that has given them actual knowledge that a statement regarding the matter is not accurate in any material respect. “ Sellers ” has the meaning set forth in the introductory paragraph. “ Startup Costs ” has the meaning set forth in Section 7.5 . “ Subsidiary ” means any corporation or limited liability company with respect to which a specified Person (or a Subsidiary thereof) owns a majority of the common stock or membership interests, as the case may be, or has the power to vote or direct the voting of sufficient securities to elect a majority of the directors or governors, as the case may be. “ Tax ” or “ Taxes ” (and with correlative meaning, “ Taxable ” and “ Taxing ”) means (i) any federal, state, provincial, local, foreign or other income, alternative, minimum, add-on minimum, accumulated earnings, personal holding company, franchise, capital stock, net worth, capital, profits, intangibles, windfall profits, gross receipts, value added, sales, use, goods and services, excise, customs duties, transfer, conveyance, mortgage, registration, stamp, documentary, recording, premium, severance, environmental (including taxes under Section 59A of the Code), natural resources, real property, personal property, ad valorem, intangibles, rent, occupancy, license, occupational, employment, unemployment insurance, social security, disability, workers’ compensation, payroll, health care, withholding, estimated or other similar tax, duty, levy or other governmental charge or assessment or deficiency thereof (including all interest and penalties thereon and additions thereto whether disputed or not) and (ii) any transferee or successor liability (by law, contract or otherwise) in respect of any items described in clause (i) above. “ Tax Credits ” means, collectively, any credits, refunds, rebates or incentives payable to the Company (as assignee of the VeraSun Entities, owner of the Facility or otherwise) by any Governmental Authority with respect to Taxes. “ Tax Recapture Liability ” means any Liability of the Company (as assignee of the VeraSun Entities, owner of the Facility or otherwise) with respect to amounts previously deducted from income for purposes of Taxes but which have become Taxable or otherwise subject to recapture Liability.
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“ Tax Return ” means any return, declaration, report, claim for refund, information return or other document (including any related or supporting estimates, elections, schedules, statements, or information) filed or required to be filed in connection with the determination, assessment or collection of any Tax or the administration of any laws, regulations or administrative requirements relating to any Tax. “ TIF Bonds ” means the Series 2006 State of Nebraska, City of Ord Community Redevelopment Revenue Bonds dated May 17, 2006, originally issued to Val-E Ethanol, L.L.C. and assigned October 9, 2007, to US Bio, the current holder thereof, issued in the following amounts: $1,026,000, maturing December 11, 2011, bearing interest at 7.0% per annum; $1,500,000, maturing December 1, 2016, bearing interest at 7.5% per annum; and $1,224,000, maturing December 31, 2021, bearing interest at 7.75%. “ Transaction Documents ” means this Agreement, the Indemnification Escrow Agreement, the Deposit Escrow Agreement and any other agreements, instruments or documents entered into pursuant to this Agreement. “ Unpermitted Liens ” has the meaning set forth in Section 5.7(e) . “ US Bio ” has the meaning set forth in the recitals. “ VeraSun ” has the meaning set forth in the recitals. “ VeraSun Entities ” has the meaning set forth in the recitals. Other Definitions and Interpretive Matters (a) Unless otherwise expressly provided, for purposes of this Agreement, the following rules of interpretation shall apply: (i) Calculation of Time Period . When calculating the period of time before which, within which or following which any act is to be done or step taken pursuant to this Agreement, the date that is the reference date in calculating such period shall be excluded. If the last day of such period is a day other than a Business Day, the period in question shall end on the next succeeding Business Day. (ii) Dollars . Any reference in this Agreement to $ means U.S. dollars. (iii) Exhibits/Schedules . All Exhibits and Schedules attached or annexed hereto or referred to herein are hereby incorporated in and made a part of this Agreement as if set forth in full herein. Any capitalized terms used in any Schedule or Exhibit but not otherwise defined therein shall be defined as set forth in this Agreement. (iv) Gender and Number . Any reference in this Agreement to gender includes all genders, and words imparting the singular number only include the plural and vice versa. (v) Headings . The provision of a table of contents, the division of this Agreement into Articles, Sections and other subdivisions and the insertion of headings are for convenience of reference only and shall not affect or be utilized in the construction or interpretation of this Agreement. All references in this Agreement to any “ Section ” or “ Article ” are to the corresponding Section or Article of this Agreement unless otherwise specified. (vi) Herein . Words such as “ herein ,” “ hereof ” and “ hereunder ” refer to this Agreement as a whole and not merely to a subdivision in which such words appear, unless the context otherwise requires. (vii) Including . The word “ including ” or any variation thereof means “ including, without limitation, ” and shall not be construed to limit any general statement that it follows to the specific or similar items or matters immediately following it.
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(b) No Strict Construction. Buyer, on the one hand, and Sellers, on the other hand, participated jointly in the negotiation and drafting of this Agreement, and, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as jointly drafted by Buyer, on the one hand, and Sellers, on the other hand, and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any provision of this Agreement. Without limitation as to the foregoing, no rule of strict construction construing ambiguities against the draftsperson shall be applied against any Person with respect to this Agreement. Purchase and Sale . Upon the terms and subject to the conditions of this Agreement, on the Closing Date, Sellers shall sell, transfer, assign, convey and deliver to Buyer, and Buyer shall purchase, acquire and accept from Sellers, all right, title and interest of Sellers in and to the Membership Interests. 2.2 Contracts and Permits . If the sale of the Membership Interests pursuant to this Agreement shall, under the terms of any Contract to which the Company is a party or Permit held by the Company, be deemed to constitute an assignment of such Contract or Permit, the responsibility for obtaining any consents from or making other arrangements with third parties required therefor shall be borne by Buyer, it being understood and agreed that Sellers shall provide reasonable cooperation in connection therewith, provided that nothing in this Section 2.2 shall require any Seller to make any expenditure or incur any obligation on its own or on behalf of Buyer. Further Assurances . At the Closing, and at all times thereafter as may be necessary, Sellers shall execute and deliver to Buyer such instruments of transfer as shall be reasonably necessary or appropriate to vest in Buyer good and indefeasible title to the Membership Interests and to comply with the purposes and intent of this Agreement, and each of the Sellers, on the one hand, and Buyer, on the other hand, shall use its reasonable efforts to take, or cause to be taken, all appropriate action, do or cause to be done all things necessary, proper or advisable under applicable law, and execute and deliver such documents and other papers, as may be required to consummate the transactions contemplated by this Agreement.
(a) The purchase price (the “ Purchase Price ”) for the Membership Interests shall be $38,000,000, payable to Seller Agent for the benefit of Sellers. That portion of the Purchase Price as is distributable to Sellers in accordance with the provisions of this Section 3.1 shall be distributed by Seller Agent to Sellers on a pro rata basis based on the number of Membership Interests owned by each Seller as disclosed on Schedule 1 . (b) At Closing, Buyer shall pay to Seller Agent for the benefit of Sellers, in immediately available funds by wire transfer to such account or accounts designated by Seller Agent prior to Closing, an aggregate amount equal to (i) the sum of (A) $37,850,000 and (B) the Retained Corn Price, less (ii) the sum of (A) the Allocated Tax Amount and (B) the Allocated Other Liability Amount (such amount so determined being referred to as the “ Cash Purchase Price ”). Seller Agent shall apply such Cash Purchase Price first to pay in full the Liabilities secured by the Unpermitted Liens, and shall distribute the remaining portion to Sellers. (c) At Closing, Buyer shall place into escrow with an escrow agent (the “ Indemnification Escrow Agent ”) mutually acceptable to Buyer and Seller Agent the sum of $150,000 (the “ Indemnification Escrow Amount ”), in accordance with an escrow agreement in form and substance reasonable acceptable to Buyer, Seller Agent and the Indemnification Escrow Agent (the “ Indemnification Escrow Agreement ”). 6
Closing Date . Upon the terms and subject to the conditions hereof, the closing of the sale of the Membership Interests contemplated hereby (the “Closing”) shall take place at the office of Gray Plant Mooty, Minneapolis, Minnesota, no later than the third (3rd) Business Day following the date on which the conditions set forth in Article 9 and Article 10 have been satisfied or (if permissible) waived (other than the conditions which by their nature are to be satisfied at the Closing, but subject to the satisfaction or (if permissible) waiver of such conditions), or at such other place or time as Buyer and Seller Agent may mutually agree. The date and time at which the Closing actually occurs is hereinafter referred to as the “Closing Date.” Buyer’s Deliveries . At the Closing, Buyer shall deliver to Seller Agent on behalf of Sellers: the Cash Purchase Price; (b) the Indemnification Escrow Agreement, duly executed by Buyer; (c) each other Transaction Document to which Buyer is a party, duly executed by Buyer; (d) the certificates of Buyer to be received by Seller Agent pursuant to Sections 10.1 and 10.2 ; and (e) a certificate of good standing of Buyer issued as of a recent date by the Secretary of State of the State of Delaware. Seller’s Deliveries . At the Closing, Sellers shall deliver to Buyer: against payment of the Cash Purchase Price, an Assignment duly executed by each Seller with respect to the Membership Interests owned by such Seller; (b) the Indemnification Escrow Agreement, duly executed by Seller Agent on behalf of Sellers; (c) each other Transaction Document to which any Seller or Seller Agent is a party, duly executed by such Seller or Seller Agent, as the case may be; (d) the resignation of all managers, governors, officers, directors and authorized representatives for the Company; (e) the certificates of Sellers to be received by Buyer pursuant to Sections 9.1 and 9.2 ; (f) a certificate of good standing of each Seller issued as of a recent date by the Secretary of State or similar officer of the jurisdiction of its organization; (g) if required, a certificate executed by each Seller, in the form prescribed under Treasury Regulation Section 1.1445-2(b), that such Seller is not a foreign person within the meaning of Section 1445(f)(3) of the Code; and (h) a release or termination of each of the Unpermitted Liens, to be delivered following the consummation of transactions contemplated to close contemporaneously with the Closing.
ARTICLE 5 Each Seller represents and warrants to Buyer as follows: Organization and Good Standing . Such Seller is an entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization.
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5.2 Ownership of Membership Interests . Such Seller is the owner, beneficially and of record, of the Membership Interests indicated on Schedule 1 as owned by such Seller, free and clear of any restriction on transfer (other than restrictions under the Securities Act and state securities law) or Lien. Such Membership Interests have been duly authorized, and are validly issued, fully paid and nonassessable. Such Seller is not a party to any option, warrant, purchase right, or other contract or commitment that would require such Seller to sell, transfer or otherwise dispose of any such Membership Interests (other than this Agreement). Such Seller is not a party to any voting trust, proxy, or other agreement or understanding with respect to the voting of any of such Membership Interests. Authority; Validity . Such Seller has the requisite entity power and authority necessary to enter into and perform its obligations under this Agreement and the other Transaction Documents to which such Seller is a party and to consummate the transactions contemplated hereby and thereby, and the execution, delivery and performance of this Agreement and such other Transaction Documents by such Seller and the consummation by such Seller of the transactions contemplated herein and therein has been duly and validly authorized by all requisite entity action. This Agreement has been duly and validly executed and delivered by such Seller and each other Transaction Document required to be executed and delivered by such Seller at the Closing will be duly and validly executed and delivered by such Seller at the Closing. This Agreement and the other Transaction Documents constitute, with respect to such Seller, the legal, valid and binding obligations of such Seller, enforceable against such Seller in accordance with their respective terms, except as such enforceability is limited by bankruptcy, insolvency, reorganization, moratorium or similar laws now or hereafter in effect relating to creditors’ rights generally or general principles of equity. 5.4 No Conflict . The execution and delivery of this Agreement and the other Transaction Documents and the consummation of the transactions provided for herein and therein will not result in the breach of any of the terms and provisions of, or constitute a default under, or conflict with, or cause any acceleration of any obligation of such Seller under (a) any agreement, indenture, or other instrument to which it is bound (other than any Contract for which consent for the transaction contemplated by this Agreement is required by the terms of such Contract but for which such consent has not been obtained), (b) the bylaws or other similar governing documents of such Seller, (c) any Order or (d) any Legal Requirement. 5.5 Litigation . There are no Proceedings pending or, to the knowledge of such Seller, threatened, that would affect such Seller’s ability to perform its obligations under this Agreement or any other Transaction Documents or to consummate the transactions contemplated hereby or thereby. 5.6 Brokers or Finders . Neither such Seller nor any Person acting on behalf of such Seller has paid or become obligated to pay any fee or commission to any broker, finder, investment banker, agent or intermediary for or on account of the transactions contemplated by this Agreement for which Buyer is or will become liable, and such Seller shall hold harmless and indemnify Buyer from any claims with respect to any such fees or commissions. 5.7 Representations and Warranties with Respect to the Company . (a) The Company is a limited liability company duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization. Except as described in Schedule 5.7(a) , the Company has the full limited liability company right, power and authority to own, lease and operate all of its properties and assets and carry out its businesses as they are presently conducted or proposed to be conducted. (b) Other than this Agreement, there are (i) no outstanding options, warrants, rights (including subscription, conversion or preemptive rights and rights of first refusal or similar rights, whether or not contingent) or agreements, orally or in writing, for the purchase or acquisition from the Company of any issued or unissued membership interests of the Company; (ii) no restrictions upon, or agreements or understandings of the Company, or understandings of any other Person, with respect to, the voting or transfer of any membership interests of the Company; and (iii) no outstanding contractual obligations of the Company to repurchase, redeem or otherwise acquire any membership interests of the Company. (c) The Company does not own or have an interest in any Subsidiaries, or own or have an interest, beneficially or otherwise, in any shares, capital or other equity or profit interest in any other corporation, partnership, limited liability company or other business association. The Company has not engaged in any business activity of any nature other than that directly associated with the consummation of the transactions contemplated by the Bankruptcy Purchase Agreement. The transactions contemplated by the Bankruptcy Purchase Agreement have been consummated. (d) Except for the Bankruptcy Case and as otherwise described in Schedule 5.7(d) , there are no Proceedings pending or, to such Seller’s Knowledge, threatened against the Company or its assets.
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(e) Except as set forth in Schedule 5.7(e) , the Company has no material Liabilities of any nature. The Company has not (i) granted any lien or security interest on or in any of its assets, other than such liens and security interests listed or described in Schedule 5.7(e) (the “ Unpermitted Liens ”), or (ii) assigned any rights under the Bankruptcy Purchase Agreement. The Company has such title in its assets as was conveyed to the Company under the Bankruptcy Purchase Agreement and pursuant to the Sale Order. (f) Except as set forth in Schedule 5.7(f) , all Tax Returns with respect to any Tax which is required to be filed by or with respect to the Company have been duly and timely filed, (ii) all items of income, gain, loss, deduction and c |
AGREEMENTS / CONTRACTS
CLAUSES
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