EXIBIT 10.1 TO SOY ENERGY, LLC FORM 10-Q FOR THE QUARTER ENDED 04-30-2010



Exhibit 10.1


	
  

 
	
 APPENDIX
 1

 
	
  

 
	
 ASSET PURCHASE AGREEMENT

 
	
  

 
	
 DATED AS OF APRIL 2, 2010

 
	
  

 
	
 BY AND BETWEEN

 
	
  

 
	
 OSM—REO FF, LLC

 
	
  

 
	
 AND

 
	
  

 
	
 SOY ENERGY, LLC


	
  

 
	
 



 









TABLE
OF CONTENTS


	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
 Page

 
	
 RECITALS

 	
  

 	
 1.

 
	
 ARTICLE 1 Definitions

 	
  

 	
 1.

 
	
  

 	
 1.1 Definitions

 	
  

 	
 1.

 
	
  

 	
 1.2 Other Definitions and Interpretive Matters

 	
  

 	
 7.

 
	
 ARTICLE 2 Purchase and Sale

 	
  

 	
 8.

 
	
  

 	
 2.1 Purchase and Sale

 	
  

 	
 8.

 
	
  

 	
 2.2 Excluded Assets

 	
  

 	
 8.

 
	
  

 	
 2.3 Assumed Liabilities

 	
  

 	
 9.

 
	
  

 	
 2.4 Excluded Liabilities

 	
  

 	
 9.

 
	
  

 	
 2.5 Assignments

 	
  

 	
 9.

 
	
  

 	
 2.6 Further Assurances

 	
  

 	
 11.

 
	
  

 	
 2.7 Escrow Deposit

 	
  

 	
 11.

 
	
 ARTICLE 3 Purchase Price

 	
  

 	
 12.

 
	
  

 	
 3.1 Purchase Price

 	
  

 	
 12.

 
	
  

 	
 3.2 Discharge of Assumed Liabilities After Closing

 	
  

 	
 12.

 
	
  

 	
 3.3 Allocation of Purchase Price

 	
  

 	
 12.

 
	
 ARTICLE 4 Closing

 	
  

 	
 12.

 
	
  

 	
 4.1 Closing Date

 	
  

 	
 12.

 
	
  

 	
 4.2 Buyer’s Deliveries

 	
  

 	
 12.

 
	
 ARTICLE 5 Representations and Warranties of Seller

 	
  

 	
 14.

 
	
  

 	
 5.1 Organization and Good Standing

 	
  

 	
 14.

 
	
  

 	
 5.2 Authority; Validity

 	
  

 	
 14.

 
	
  

 	
 5.3 No Conflict

 	
  

 	
 14.

 
	
  

 	
 5.4 Owned Real Property

 	
  

 	
 15.

 
	
  

 	
 5.5 Title; Liens and Encumbrances

 	
  

 	
 15.

 
	
  

 	
 5.6 Litigation

 	
  

 	
 15.

 
	
  

 	
 5.7 Employment Matters

 	
  

 	
 15.

 
	
  

 	
 5.8 Assigned Contracts

 	
  

 	
 15.

 
	
  

 	
 5.9 Brokers or Finders

 	
  

 	
 15.

 
	
 ARTICLE 6 Representations and Warranties of Buyer

 	
  

 	
 15.

 
	
  

 	
 6.1 Organization and Good Standing

 	
  

 	
 15.

 
	
  

 	
 6.2 Authority; Validity

 	
  

 	
 15.

 
	
  

 	
 6.3 No Conflict

 	
  

 	
 16.

 
	
  

 	
 6.4 Availability of Funds

 	
  

 	
 16.

 
	
  

 	
 6.5 Litigation

 	
  

 	
 16.

 
	
  

 	
 6.6 Brokers or Finders

 	
  

 	
 16.

 
	
 ARTICLE 7 Action Prior to the Closing Date

 	
  

 	
 16.

 
	
  

 	
 7.1 Operations Prior to the Closing Date

 	
  

 	
 16.

 
	
  

 	
 7.2 Governmental Consents; Commercially Reasonable
 Efforts

 	
  

 	
 16.

 
	
  

 	
 7.3 Operating Permits

 	
  

 	
 18.

 
	
  

 	
 7.4 Due Diligence

 	
  

 	
 18.

 
	
  

 	
 7.5 Preparation of the Proxy Statement; Unitholder
 Meeting

 	
  

 	
 19.

 
	
 ARTICLE 8 Additional Agreements

 	
  

 	
 20.

 
	
  

 	
 8.1 Taxes

 	
  

 	
 20.

 
	
  

 	
 8.2 Payments Received

 	
  

 	
 21.

 


i









	
  

 	
  

 	
  

 	
  

 
	
  

 	
 8.3 No Other Representations or Warranties

 	
  

 	
 21.

 
	
  

 	
 8.4 Acquired Assets “AS IS”; Buyer’s Acknowledgment
 Regarding Same

 	
  

 	
 22.

 
	
  

 	
 8.5 Mobilization, Utilities

 	
  

 	
 22.

 
	
  

 	
 8.6 Reserve; Certain Insurance Matters

 	
  

 	
 23.

 
	
 ARTICLE 9 Conditions Precedent to Obligations of
 Buyer to Close

 	
  

 	
 24.

 
	
  

 	
 9.1 Accuracy of Representations

 	
  

 	
 25.

 
	
  

 	
 9.2 Seller’s Performance

 	
  

 	
 25.

 
	
  

 	
 9.3 Seller’s Deliveries

 	
  

 	
 25.

 
	
  

 	
 9.4 Due Diligence

 	
  

 	
 25.

 
	
  

 	
 9.5 Title Policy and Objections

 	
  

 	
 25.

 
	
  

 	
 9.6 Lien Search Results

 	
  

 	
 26.

 
	
  

 	
 9.7 Damage to Acquired Assets

 	
  

 	
 26.

 
	
  

 	
 9.8 Financing

 	
  

 	
 26.

 
	
  

 	
 9.9 Buyer Unitholder Approval

 	
  

 	
 26.

 
	
  

 	
 9.10 No Order

 	
  

 	
 26.

 
	
  

 	
 9.11 Governmental Authorizations

 	
  

 	
 26.

 
	
  

 	
 9.12 Consents

 	
  

 	
 26.

 
	
  

 	
 9.13 IDED

 	
  

 	
 26.

 
	
  

 	
 9.14 Seller’s Cure Rights

 	
  

 	
 26.

 
	
 ARTICLE 10 Conditions Precedent to the Obligation of
 Seller to Close

 	
  

 	
 27.

 
	
  

 	
 10.1 Accuracy of Representations

 	
  

 	
 27.

 
	
  

 	
 10.2 Buyer’s Performance

 	
  

 	
 27.

 
	
  

 	
 10.3 Buyer’s Deliveries

 	
  

 	
 27.

 
	
  

 	
 10.4 No Order

 	
  

 	
 27.

 
	
  

 	
 10.5 Governmental Authorizations

 	
  

 	
 27.

 
	
  

 	
 10.6 Consents

 	
  

 	
 27.

 
	
  

 	
 10.7 Financing

 	
  

 	
 27.

 
	
  

 	
 10.8 IDED

 	
  

 	
 27.

 
	
  

 	
 10.9 Buyer’s Cure Rights

 	
  

 	
 28.

 
	
 ARTICLE 11 Limited Exclusivity

 	
  

 	
 28.

 
	
  

 	
 11.1 Buyer’s Limited Exclusive Window

 	
  

 	
 28.

 
	
  

 	
 11.2 Seller’s Safe Harbor

 	
  

 	
 28.

 
	
 ARTICLE 12 Termination

 	
  

 	
 29.

 
	
  

 	
 12.1 Termination Events

 	
  

 	
 29.

 
	
  

 	
 12.2 Effect of Termination

 	
  

 	
 31.

 
	
  

 	
 12.3 Expenses in the Event of Termination

 	
  

 	
 31.

 
	
  

 	
 12.4 Rights and Remedies

 	
  

 	
 31.

 
	
 ARTICLE 13 General Provisions

 	
  

 	
 31.

 
	
  

 	
 13.1 Survival

 	
  

 	
 31.

 
	
  

 	
 13.2 Public Announcements

 	
  

 	
 31.

 
	
  

 	
 13.3 Notices

 	
  

 	
 32.

 
	
  

 	
 13.4 Waiver

 	
  

 	
 33.

 
	
  

 	
 13.5 Entire Agreement; Amendment

 	
  

 	
 33.

 
	
  

 	
 13.6 Assignment

 	
  

 	
 33.

 
	
  

 	
 13.7 Severability

 	
  

 	
 33.

 
	
  

 	
 13.8 Expenses

 	
  

 	
 33.

 
	
  

 	
 13.9 Governing Law; Consent to Jurisdiction and
 Venue; Jury Trial Waiver

 	
  

 	
 33.

 
	
  

 	
 13.10 Counterparts

 	
  

 	
 34.

 
	
  

 	
 13.11 Parties in Interest; No Third Party
 Beneficiaries

 	
  

 	
 34.

 
	
  

 	
 13.12 Non-Recourse

 	
  

 	
 34.

 


ii









	
  

 	
  

 	
  

 
	
 SCHEDULES AND EXHIBITS

 
	
  

 	
 Schedules and Exhibits Cover Page

 	
  

 
	
  

 	
 Schedule 1.1(a)

 	
 Assigned Contracts

 
	
  

 	
 Schedule 1.1(b)

 	
 Unpermitted Liens

 
	
  

 	
 Schedule 1.1(c)

 	
 Permitted Encumbrances

 
	
  

 	
 Schedule 2.1(a)

 	
 Facility Description

 
	
  

 	
 Schedule 2.1(b)

 	
 Certain Equipment

 
	
  

 	
 Schedule 2.1(f)

 	
 Additional Designated Assets

 
	
  

 	
 Schedule 3.1(c)

 	
 Pre-Paid Expenses

 
	
  

 	
 Schedule 3.3

 	
 Allocation of Purchase Price

 
	
  

 	
 Schedule 4.3(a)

 	
 Certain Transaction Documents

 
	
  

 	
 Schedule 5.4(a)

 	
 Owned Real Property

 
	
  

 	
 Schedule 5.4(b)

 	
 Certain Proceedings

 
	
  

 	
 Schedule 7.2(a)

 	
 Certain Permits

 
	
  

 	
 Schedule 8.6(a)

 	
 Facility Repairs

 
	
  

 	
 Schedule 8.6(b)

 	
 Environmental Investigatory and Corrective Actions

 
	
  

 	
 Exhibit A

 	
 Bankruptcy Order

 
	
  

 	
 Exhibit B

 	
 Hold-Back Escrow Agreement

 
	
  

 	
 Exhibit C

 	
 Certain Loan Documents

 


iii






ASSET PURCHASE AGREEMENT


          THIS
ASSET PURCHASE AGREEMENT (this “Agreement”) is
made as of April 2, 2010 (the “Effective Date”), by and among OSM—REO FF, LLC, a Minnesota limited
liability company (“Seller”), and Soy
Energy, LLC, an Iowa limited liability company (“Buyer”).
Capitalized terms used herein and not otherwise defined herein have the
meanings set forth in Article 1.


Recitals


          WHEREAS,
Freedom Fuels, LLC, an Iowa limited liability company (“Freedom Fuels”)
was engaged in the business of producing biodiesel and its co-products at its
biodiesel production facility located at Mason City, Iowa; 


          WHEREAS,
Freedom Fuels filed a voluntary petition for relief (the “Filing”) under
Chapter 11 of the United States Bankruptcy Code (the “Bankruptcy Code”)
in the United States Bankruptcy Court for the Northern District of Iowa (the “Bankruptcy
Court”), case number 09-02468-wle11 (the “Bankruptcy Case”);


          WHEREAS,
Freedom Fuels assigned to Seller certain assets pursuant to an order (the “Bankruptcy
Order”) issued by the Bankruptcy Court on or about November 20, 2009, a
copy of which is attached hereto as Exhibit A;


          WHEREAS,
Seller desires to sell to Buyer, and Buyer desires to purchase from Seller,
certain assets conveyed to Seller pursuant to the Bankruptcy Order, and Seller
further has agreed to assume certain liabilities relating to said assets, upon
the terms and conditions hereinafter set forth.


          NOW,
THEREFORE, in consideration of the premises and the mutual promises herein
made, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties hereto agree as
follows:


ARTICLE 1

DEFINITIONS


                    1.1          
Definitions. For purposes of this Agreement, the following terms have
the meanings specified or referenced below.


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


          “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.


          “Additional
Designated Assets” means those assets conveyed to Seller pursuant to the
Bankruptcy Order that the Parties have designated in Schedule 2.1(f) to
be purchased hereunder by Buyer.


          “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.


1





          “Assigned
Contracts” means the Contracts listed or described in Schedule 1.1(a),
as the same may be modified or supplemented from time to time by written
agreement of the Parties.


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


          “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
Order” 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. 


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


          “Buyer
Unitholder Meeting” means the special meeting held by Buyer in accordance
with the terms of its governance requirements for the purpose of obtaining the
Buyer Unitholder Approval.


          “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.


          “Closing
Deadline” means the date forty five (45) days after the Expiration Date.


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


          “Confidentiality
Arrangements” has the meaning set forth in Section 2.5(b).


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


          “Deed”
means (i) a quitclaim deed, in form and substance reasonably acceptable to
Buyer and Seller, transferring title to the Owned Real Property, or (ii) if
reasonably required by the Title Company to issue a Title Commitment for
insurable title to the Owned Real Property pursuant to Section 9.5, such
other form of special or limited warranty deed as may be acceptable to Seller,
provided that such acceptance of said special or limited warranty deed, if
required, will not be unreasonably withheld by Seller.


          “Deposit
Escrow Agent” means such escrow agent as is mutually acceptable to Buyer
and Seller.


          “Deposit
Escrow Agreement” means the Deposit and Escrow Agreement of even date
herewith among Buyer, Seller and Deposit Escrow Agent, as contemplated by Section
2.7.


2





          “Documents”
means all books, records, files, invoices, Inventory records, product
specifications, advertising materials, employment records, customer lists, cost
and pricing information, supplier lists, business plans, catalogs, customer
literature, quality control records and manuals, research and development
files, records and laboratory books, plans, blueprints, specifications, studies,
surveys, maps, drawings, analysis, reports, training materials, ownership and
operating manuals, credit records of customers, correspondence with
Governmental Authorities and modeling, testing and monitoring data and
reporting, notifications and plans relating to environmental health and safety
matters (including, in each case, all data and other information stored on
discs, tapes or other media).


          “Due
Diligence Expiration Date” has the meaning set forth in Section 12.1(b).


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


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


          “Environmental
Condition” means that certain release of hydrochloric acid and resulting
conditions at the Facility (including any release or threatened release of
chloride or other substances to soil and/or groundwater and damage to a
concrete containment basin) as more fully described in that certain report of
Geotechnical Services, Inc., entitled “Hydrochloric Acid Containment Basin
Investigation Freedom Fuels, 4172 19th Street SW, Mason City, Iowa,” and dated
August 28, 2009.


          “Equipment”
means all furniture, trade fixtures, equipment, computers, machinery, vehicles,
apparatus, appliances, implements, signage, supplies and all other tangible
personal property of every kind and description owned by Seller, including
spare parts, for use in or relating to the Facility, as more fully set forth in
Schedule 2.1(b); provided, that the term “Equipment” as
used herein shall not include any of the plant equipment identified in Schedule
2.1(a) and included in the term “Facility” as used herein.


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


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


          “Expiration
Date” means the earlier of the following: (i) the date one hundred (100)
days after the Effective Date, or (ii) the date three (3) business days after
the date on which Buyer Unitholder Approval is obtained pursuant to Section
7.5.


          “Facility”
means the biodiesel production plant located on the Owned Real Property,
including all buildings, structures, fixtures, and Improvements located on such
Owned Real Property, and further including all tanks, piping, racks, controls,
and other plant equipment located in or associated with said plant, all as more
specifically identified in Schedule 2.1(a). 


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


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


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


3





          “Hold-Back
Escrow Agent” means such escrow agent as is mutually acceptable to Buyer
and Seller.


          “Hold-Back
Escrow Agreement” means the Hold-Back Escrow Agreement among Buyer, Seller
and Hold-Back Escrow Agent, which agreement shall be substantially in the form
of Exhibit B attached hereto.


          “Improvements”
means all of the structures, parking areas, landscaping, buildings and
improvements (in each case if any) situated on the Owned Real Property.


          “Inventory”
means (i) all finished biodiesel stored at the Facility; (ii) all
Work in Progress; (iii) all finished biodiesel produced at the Facility
and in transit to a third party; (iv) all grain and grain-product inputs
stored at the Facility; (v) all grain and grain-product inputs stored at
third-party facilities, but only to the extent such grain or grain-product
inputs are exclusively for use at the Facility; (vi) all bi-products or
co-products, located at the Facility or in transit, or in storage for transit,
to a third party, created in connection with the production of biodiesel at the
Facility; and (vii) all chemicals and other production inputs other than
grain or grain products located at the Facility or in transit to, or in storage
for transit to, the Facility.


          “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).


          “Loan
Documents” means a credit or loan agreement by and between Buyer and Seller
or an Affiliate of Seller, as agent, and other banks named therein, and all
other documents and instruments contemplated thereby, including such
intercreditor agreements as may be required by the lenders to Buyer. The Loan
Documents shall include those documents attached hereto in Exhibit C in
substantially the form set forth therein.


          “Material
Adverse Effect” means a material adverse change in or material adverse
effect on the Facility or other Acquired Assets (excluding the Excluded Assets
and the Excluded Liabilities), in each case taken as a whole, but excluding (a)
any change or effect to the extent that it results from or arises out of (i)
the Filing; (ii) the execution and delivery of this Agreement or the
announcement thereof or the pendency or consummation of the transactions
contemplated hereby; (iii) geopolitical conditions or any outbreak or
escalation of hostilities or acts of terrorism or war; (iv) changes in (or
proposals to change) Legal Requirements or accounting regulations or
principles; (v) any action contemplated by this Agreement or taken at the
request of Buyer; (vi) changes in prices or costs of commodities or supplies;
(vii) failure of Seller to meet any internal or published projections,
forecasts, estimates or predictions in respect of financial or operating
metrics; or (viii) 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 Facility has operated
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 Facility or its anticipated operation or any other
Acquired Assets, taken as a whole, in a disproportionate manner relative to the
other participants in the industries and markets in which the Facility has
operated or proposes to operate.


4





          “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
5.3(a) and any Improvements located thereon, including the Facility.


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


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


          “Permits”
means those licenses, permits, variances, exceptions, consents, certificates,
approvals, clearances and Orders issued by a Governmental Authority, together
with any pending applications therefor or in connection therewith.


          “Permitted
Encumbrances” means any of the following: (i) any utility easements,
leases, or reservations, or other similar rights of others in, or minor defects
and irregularities in, title that do not impair the intended use of the subject
property or assets; (ii) any Encumbrance or privilege vested in any lessor,
licensor or permittor for rent or other obligations solely related to the
period after Closing; (iii) any licenses of or other grants of rights to use
intellectual property entered into in the ordinary course of business that do
not materially impair the ownership or use of the Acquired Assets; (iv) any
encumbrances, title exceptions or other imperfections of title caused by or
resulting from the acts of Buyer or any of its Affiliates, employees, officers,
directors, agents, contractors, invitees or licensees; (v) any liens for Taxes
not yet due and payable; (vi) any liens, claims, or other encumbrances relating
to or arising from any goods or services requested directly or indirectly by
Buyer or any of its Affiliates, employees, officers, directors, agents,
contractors, invitees or licensees; and (vii) Encumbrances set forth on Schedule
1.1(c). Permitted Encumbrances shall not include any Unpermitted Liens.


          “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.


          “Potentially
Confidential Information” has the meaning set forth in Section
2.5(b).


          “Pre-Paid
Expenses” has the meaning set forth in Section 3.1(c).


          “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.


          “Proxy
Statement” refers to the proxy statement to be filed with the SEC by Buyer
pursuant to Section 7.5.


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


          “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. 


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


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


5





          “Seller’s
Knowledge” means, with respect to any matter in question, the actual
knowledge (excluding, among other things, constructive and imputed knowledge)
of Melanie Tanone 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
statements regarding the matter are not accurate in any material respect. 


          “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
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.


          “Title
Commitment” has the meaning set forth in Section 9.5. 


          “Title
Company” has the meaning set forth in Section 9.5.


          “Title
Policy” has the meaning set forth in Section 9.5.


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


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


          “Unitholder
Approval Deadline” has the meaning set forth in Section 7.5(f).


          “Unpermitted
Liens” means (i) the liens on and security interests in Acquired Assets
listed or described in Schedule 1.1(b), and/or (ii) any Encumbrances to
which Buyer makes timely Objection under Section 9.5 as long as said
Objection is not waived by Buyer or cured by Seller in accordance with Section
9.5.


          “Work in
Progress” means all unfinished biodiesel (or biodiesel components) still
involved in the production process (i.e., not finished biodiesel) and located
in production devices, piping or elsewhere within the Facility, as well as all
grains and grain products still involved in the production process (i.e.,
not yet ready to be marketed), located anywhere and intended for use in
operation of the Facility.


6






                    1.2          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.

 






	
  

 	
  

 
	
  

 	
                         (b)          
No Strict Construction. Buyer, on the one hand, and Seller, 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 Seller, 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.





7





ARTICLE 2

PURCHASE AND SALE


                    2.1          
Purchase and Sale. Upon the terms and subject to the conditions of this
Agreement, on the Closing Date, Seller shall sell, transfer, assign, convey and
deliver, or cause to be sold, transferred, assigned, conveyed and delivered,
free and clear of any Encumbrances (except for Permitted Encumbrances and
subject to Article 8), to Buyer, and Buyer shall purchase, all right,
title and interest of Seller in, to or under the following (collectively, the “Acquired
Assets”):


	
  

 	
  

 
	
  

 	
                          (a)          
 the Facility;

 
	
  

 	
  

 
	
  

 	
                          (b)          
 the Equipment;

 
	
  

 	
  

 
	
  

 	
                          (c)          
 the Inventory; 

 
	
  

 	
  

 
	
  

 	
                          (d)          
 subject to Section 2.5, the Assigned Contracts;

 
	
  

 	
  

 
	
  

 	
                          (e)          
 the Owned Real Property, together with all of the Improvements; 

 
	
  

 	
  

 
	
  

 	
                          (f)          
 the Additional Designated Assets; 

 
	
  

 	
  

 
	
  

 	
                          (g)          
 to the extent reasonably practicable and permitted by applicable Legal
 Requirements, all domain names, telephone, telex and telephone facsimile
 numbers and other directory listings relating to the Facility;

 
	
  

 	
  

 
	
  

 	
                          (h)          
 to the extent available and permitted by applicable Legal Requirements, all
 Documents that relate primarily to any of the Acquired Assets specified in
 this Section 2.1, provided that Seller may retain copies
 of such Documents; and 

 
	
  

 	
  

 
	
  

 	
                          (i)          
 subject to Section 2.5 and Article 7, (i) all Permits held by
 Seller relating to the Facility that can be transferred to Buyer under
 applicable Legal Requirements with or without Governmental Authority
 approval, and (ii) such transferable Permits that were issued to an owner of
 the Facility and are either assigned to Seller pursuant to the Bankruptcy
 Order or are in the process of transfer to Seller pursuant to a request
 pending with a Governmental Authority (collectively, such Permits referenced
 in clauses (i) and (ii) of this paragraph herein are referred to as the
 “Transferable Permits”).

 


                    2.2          
Excluded Assets. The Acquired Assets shall not include any other assets
of Seller (such assets other than the Acquired Assets, collectively, the “Excluded
Assets”). Without limiting the generality of the foregoing, the Acquired
Assets shall not include, and the Excluded Assets will include, the following:


	
  

 	
  

 
	
  

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

 
	
  

 	
  

 
	
  

 	
                          (b)          
 all cash and cash equivalents of Seller, including checks, commercial paper,
 treasury bills, certificates of deposit and other bank deposits;

 
	
  

 	
  

 
	
  

 	
                          (c)          
 any rights, claims or causes of action of Seller under this Agreement or any
 other Transaction Document; and

 


8









	
  

 	
  

 
	
  

 	
                          (d)          
 any other assets acquired by Seller pursuant to the Bankruptcy Order that are
 not expressly identified as “Acquired Assets” in Section 2.1.

 


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


	
  

 	
  

 
	
  

 	
                          (a)          
 all executory obligations for future performance under the Assigned Contracts
 for the period commencing on the Closing Date, and all other Liabilities
 under the Assigned Contracts and Transferable Permits relating to events or
 circumstances first arising and accruing after the Closing Date; 

 
	
  

 	
  

 
	
  

 	
                          (b)          
 all obligations relating to any Confidentiality Arrangements and Potentially
 Confidential Information relating to the Acquired Assets to the extent
 provided in Section 2.5; and 

 
	
  

 	
  

 
	
  

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

 


Buyer agrees to indemnify and hold Seller harmless from any and all
claims, costs or other Liabilities, including reasonable attorneys’ fees,
arising with respect to the Assumed Liabilities or any and all Liabilities
arising from ownership of the Acquired Assets, operation of the Facility, and
incidents and occurrences after the Closing Date.


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


                    2.5          
Assignments


	
  

 	
  

 
	
  

 	
                          (a)          
 Seller shall transfer and assign all Assigned Contracts and Transferable
 Permits to Buyer, and Buyer shall assume all Assigned Contracts and
 Transferable Permits from Seller, as of the Closing Date. The costs and
 responsibility for obtaining any consents from third parties required
 therefor shall be borne by Buyer, it being understood and agreed that subject
 to the further terms of this Section 2.5 and Article 7, Seller
 shall provide reasonable cooperation in connection therewith as required by
 this Agreement. Notwithstanding any other provision of this Agreement to the
 contrary, this Agreement shall not constitute an agreement to assign any
 Assigned Contract or Permit if an attempted assignment without the consent of
 a third party (including any Governmental Authority, which consent has not
 been obtained prior to the Closing), would constitute a breach of any
 obligation, violation of any applicable law or regulation, or in any way
 adversely affect the rights of Buyer or Seller thereunder.

 


9









	
  

 	
  

 
	
  

 	
                          (b)          
 The Acquired Assets (including the Facility, Equipment and Assigned
 Contracts) include agreements, plans, specifications, information, data,
 designs, software, processes, work product, and other materials that may be
 proprietary, confidential and/or otherwise non-public (herein collectively
 referred to as “Potentially Confidential Information,”) and said
 Potentially Confidential Information may be subject to confidentiality,
 licensing, trade secret, copyright, and/or other intellectual-property
 limitations, restrictions or agreements with third parties (herein
 collectively referred to as “Confidentiality Arrangements”) that may
 be applicable to the Acquired Assets or to assignment of said Acquired Assets
 to Buyer as contemplated by this Agreement. Buyer acknowledges that Seller
 has disclosed to Buyer that such Confidentiality Arrangements may be
 applicable to the Acquired Assets or the assignment thereof, but Seller is
 not aware of the scope, terms, conditions, existence or other elements, if any,
 of such Confidentiality Arrangements (including any limitations or
 restrictions with regard to Seller’s right, title and interest, if any,
 regarding Potentially Confidential Information), and Buyer further
 acknowledges that the Closing of the transactions contemplated by this
 Agreement shall represent Buyer’s agreement that it has assumed any and all
 Liabilities with respect to Potentially Confidential Information and
 Confidentiality Arrangements arising from or related to any or all of the
 Acquired Assets. The Parties further acknowledge and agree that it shall be
 Buyer’s sole obligation to obtain any necessary approvals, consents or other
 agreements from any and all Persons with respect to any Potentially
 Confidential Information or Confidentiality Arrangements, provided that
 Seller shall reasonably cooperate with Buyer in endeavoring to obtain such
 approvals, consents or other agreements (including reasonably cooperating
 with Buyer in connection with any actions required of Buyer pursuant to the
 immediately following sentence in this Section 2.5(b)), but Seller
 shall not be required to make any expenditure or incur any obligation on its
 own or on behalf of Buyer. Without limiting the generality of the foregoing
 provisions of this Section 2.5, before Seller delivers to Buyer any of
 the Assigned Contracts in connection with the due-diligence investigation
 contemplated by Section 7.4, Buyer shall first deliver to Seller, in a
 form reasonably satisfactory to Buyer, (i) a written agreement with respect
 to each such Assigned Contract, executed by the parties thereto, authorizing
 Seller to deliver said Assigned Contract to Buyer regardless of any
 Confidentiality Arrangements, and providing Buyer with the right to receive
 such Assigned Contract and any Potentially Confidential Information contained
 therein or relating thereto, and (ii) proof of Buyer’s compliance with any
 terms or conditions applicable to Seller’s delivery to Buyer of such Assigned
 Contract; except
 that if, with respect to any Assigned Contract, Buyer provides Seller with
 written confirmation, signed by all parties to said Assigned Contract, that
 there are no Confidentiality Arrangements applicable to said Assigned
 Contract and that Seller may deliver and assign said Assigned Contract to
 Buyer without any further action on the part of Seller, Buyer or any other
 Person, Seller thereafter shall deliver said Assigned Contract to Buyer in
 connection with the due-diligence process under Section 7.4 and assign
 said Assigned Contract to Buyer in accordance with this Article 2.

 
	
  

 	
  

 
	
  

 	
                          (c)          
 With respect to Assigned Contracts:

 






	
  

 	
  

 
	
  

 	
                             (i)          Buyer agrees to use
 commercially reasonable efforts to enter into novation agreements whereby
 Buyer will assume, and Seller will be released from, all obligations under
 the Assigned Contracts.

 
	
  

 	
  

 
	
  

 	
                             (ii)         If with respect to any
 Assigned Contract any required consent is not obtained or such assignment is
 not attainable, then such Assigned Contract shall not be transferred
 hereunder and, subject to the satisfaction or waiver of the other conditions
 to Closing, the Closing shall proceed with respect to the remaining Acquired
 Assets without any reduction in the Purchase Price, and Seller shall
 reasonably cooperate with Buyer in endeavoring to obtain such consent for a
 period of 180 days after the Closing Date, provided, however, that if
 any such consent is not obtained within said 180 day period, Seller shall
 have no further obligations with respect to obtaining such consent, and the
 absence of such consent and/or inability to transfer such Assigned Contract
 to Buyer shall not be considered a breach of this Agreement, and Buyer shall
 have no further rights or remedies with respect to such Assigned Contract
 (including any claim that this Agreement has been breached or is invalid due
 failure of consideration, mistake or other grounds). Nothing in this Section
 2.5(c)(ii) shall require Seller to make any expenditure or incur any
 obligation on its own or on behalf of Buyer.

 



10








	
  

 	
  

 
	
  

 	
                          (d)          
 With respect to Transferable Permits, Buyer, on the one hand, and Seller, on
 the other hand, shall take all reasonable actions to provide or submit any
 notifications, forms, requests, applications or other reasonably necessary
 documents in order to notify, or obtain consents, approvals or waivers from
 any applicable Governmental Authorities or other Person, necessary to
 facilitate the transfer of any Transferable Permits to Buyer. If any
 Transferable Permit is not able to be so transferred on or before the
 Closing, and Buyer needs such Transferable Permit to conduct or operate the
 Facility, Buyer shall use its commercially reasonable efforts and make every
 good faith attempt (and Seller shall reasonably cooperate with Buyer) to
 obtain a substantially equivalent Permit, and Seller shall provide any
 consent from Seller reasonably necessary to authorize the use by Buyer of
 such Permit. If within 180 days after the Closing Date, Buyer has not
 obtained any such Transferable Permit or a substantially equivalent Permit,
 Seller shall have no further obligations under this paragraph, and the
 inability of Buyer to obtain such Transferable Permit or a substantially
 equivalent Permit shall not be considered a breach of this Agreement, and
 Buyer shall have no further rights or remedies with respect to such
 Transferable Permit or a substantially equivalent Permit (including any claim
 that this Agreement has been breached or is invalid for failure of
 consideration, mistake or other grounds), provided, however, that nothing in this
 paragraph shall modify or affect any obligations of Buyer under the Loan
 Documents to obtain any and all necessary approvals, clearances consents or
 other authorizations (including any Permits) from any applicable Governmental
 Authority and/or to comply with any and all applicable Legal Requirements.
 Nothing in this Section 2.5(c) shall require Seller to make any
 expenditure or incur any obligation on its own or on behalf of Buyer.

 


                    2.6          
Further Assurances. In furtherance and not in limitation to the rights
and obligations set forth in Section 7.2, at the Closing, and at all
times thereafter as may be necessary, but subject to the terms of Section
2.5 and Article 7, Seller shall execute and deliver to Buyer such
other instruments of transfer as shall be reasonably necessary or appropriate
to vest in Buyer all of Seller’s right, title and interest in and to the
Acquired Assets and to comply with the purposes and intent of this Agreement
and such other instruments as shall be reasonably necessary or appropriate to
evidence the assignment by Seller and assumption by Buyer of the Assigned
Contracts and to effectuate the transfer of the Transferable Permits, and
Seller, 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.


                    2.7          
Escrow Deposit. Provided that this Agreement has not been terminated on
or prior to the Expiration Date pursuant to Article 12, Seller, on the
Expiration Date, shall deposit the amount of $250,000 (the “Deposit”) with
the Deposit Escrow Agent, pursuant to the terms of the Deposit Escrow
Agreement, as earnest money in connection with this Agreement. From and after
the Expiration Date, if the Agreement has not been terminated by either Party
on or prior to said Expiration Date, the Deposit shall be non-refundable to
Buyer in all circumstances. The Deposit shall be held in escrow and
subsequently released to Seller on the Closing Date or earlier termination of
this Agreement pursuant to the terms of the Deposit Escrow Agreement, except that
if the transactions contemplated herein are closed on or before the Closing
Deadline, then the Deposit shall be credited toward the Purchase Price to the
extent set forth in Section 3.1. 


11






ARTICLE 3

PURCHASE PRICE


                    3.1          Purchase
Price. The purchase price (the “Purchase Price”) for the purchase,
sale, assignment and conveyance of Seller’s right, title and interest in, to
and under the Acquired Assets shall consist of: 


	
  

 	
  

 
	
  

 	
                          (a)          the
 assumption by Buyer at Closing of the Assumed Liabilities; and 

 
	
  

 	
  

 
	
  

 	
                          (b)          the
 payment to Seller of $10,000,000 in cash at Closing by wire transfer or other
 immediately available funds to such account or accounts as shall be specified
 by Seller, provided, the
 foregoing cash payment shall be reduced at Closing by the amount of the Hold
 Back deposited by Buyer with the Deposit Escrow Agent pursuant to Section
 8.6, and provided further, that
 as long as the Closing occurs by the Closing Deadline, then Seller shall
 receive a credit up to the amount of the Deposit against said $10,000,000,
 but only to the extent that at Closing Seller actually receives such Deposit
 and there are no other claims pending against such Deposit; and 

 
	
  

 	
  

 
	
  

 	
                          (c)          the
 payment to Seller of an amount equal to any prepaid charges and expenses of
 Seller set forth on Schedule 3.1(c) (the “Pre-Paid Expenses”)
 incurred by Seller, to the extent Buyer will receive after the Closing Date
 the goods and/or services for which such expenses have been incurred. 

 


                    3.2
          Discharge of Assumed Liabilities After Closing. Buyer shall pay, perform
or satisfy the Assumed Liabilities from time to time and as such Assumed
Liabilities become due and payable or are required to be performed or satisfied
in accordance with their respective terms. 


                    3.3
          Allocation of Purchase Price. The Purchase Price will be allocated among
the Acquired Assets as set forth in Schedule 3.3 (which Schedule 3.3
may be updated and otherwise modified from time to time by mutual written
agreement of Buyer and Seller). 


ARTICLE 4

CLOSING


                    4.1          Closing
Date. Upon the terms and subject to the conditions hereof, the closing of
the sale of the Acquired Assets and the assumption of the Assumed Liabilities
contemplated hereby (the “Closing”) shall take place at the office of
Leonard, Street and Deinard, Minneapolis, Minnesota or such other place as
mutually agreed to by the Parties, and such Closing shall occur 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, provided, however,
that in no event shall the Closing occur later than the Closing
Deadline unless Buyer and Seller mutually agree to such later date. The date
and time at which the Closing actually occurs is hereinafter referred to as the
“Closing Date.” 


                    4.2          Buyer’s
Deliveries. At the Closing, Buyer shall deliver or cause to be delivered to
Seller: 


	
  

 	
  

 
	
  

 	
                          (a)          the
 Purchase Price; 

 
	
  

 	
  

 
	
  

 	
                          (b)          the
 Bill of Sale, and Assignment and Assumption Agreement, each of which shall be
 in the form set forth in Schedule 4.3(a) hereto, duly executed by
 Buyer; 

 


12









	
  

 	
  

 
	
  

 	
                          (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 pursuant to Sections 10.1
 and 10.2; 

 
	
  

 	
  

 
	
  

 	
                          (e)          a
 copy of Buyer’s certificate of formation or organization, certified as of a
 recent date by the Secretary of State of the State of Iowa; 

 
	
  

 	
  

 
	
  

 	
                          (f)          a
 certificate of existence of Buyer issued as of a recent date by the Secretary
 of State of the State of Iowa; 

 
	
  

 	
  

 
	
  

 	
                          (g)          a
 certificate of any authorized manager or member of Buyer, dated the Closing
 Date, in form and substance reasonably satisfactory to Seller, as to (i)
 there having been no amendments to the certificate of formation or
 organization of Buyer since the date of the certified certificate of
 formation delivered pursuant to Section 4.2(f); (ii) complete copies
 of Buyer’s operating agreement, member control agreement, limited liability
 company agreement, bylaws and/or other similar governing documents; (iii)
 Buyer’s authorization to execute and perform its obligations under the
 Transaction Documents to which Buyer is a party; and (iv) incumbency and
 signatures of the managers or members executing the Transaction Documents; 

 
	
  

 	
  

 
	
  

 	
                          (h)         a
 duly executed closing statement, in form and substance reasonably satisfactory
 to Seller; and 

 
	
  

 	
  

 
	
  

 	
                          (i)          such
 other assignments, other good and sufficient instruments of assumption and transfer
 or other documents, in form reasonably satisfactory to Seller, as Seller may
 reasonably request to transfer and assign the Assumed Liabilities to Buyer. 

 
	
  

 	
  

 
	
                     4.3          Seller’s
 Deliveries. At the Closing, Seller shall deliver or cause to be delivered
 to Buyer: 

 
	
  

 	
  

 
	
  

 	
                          (a)          the
 Bill of Sale, Assignment and Assumption Agreement, and Deed, each of which
 shall be in the form set forth in Schedule 4.3(a) hereto, duly
 executed by Seller; 

 
	
  

 	
  

 
	
  

 	
                          (b)          each
 other Transaction Documents required by this Agreement to which Seller is a
 party, duly executed by Seller; 

 
	
  

 	
  

 
	
  

 	
                          (c)          title
 certificates, to the extent that Seller is in possession of the same, for each
 Acquired Asset, the ownership of which is evidenced thereby, and 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; provided that Seller
 shall reasonably cooperate with Buyer to obtain title certificates not in
 Seller’s possession and to transfer the same to Buyer, and provided further that nothing in this Section
 4.3(c) shall require Seller to make any expenditure or incur any obligation
 on its own or on behalf of Buyer. 

 
	
  

 	
  

 
	
  

 	
                          (d)          the
 certificates of Seller to be received by Buyer pursuant to Sections 9.1
 and 9.2; 

 
	
  

 	
  

 
	
  

 	
                          (e)          a
 copy of Seller’s certificate of formation, certified as of a recent date by
 the Secretary of State of the State of Minnesota; 

 


13









	
  

 	
  

 
	
  

 	
                          (f)          a
 certificate of good standing of Seller issued as of a recent date by the
 Secretary of State of the State of Minnesota; 

 
	
  

 	
  

 
	
  

 	
                          (g)          a
 certificate of any authorized manager or member of Seller, dated the Closing
 Date, in form and substance reasonably satisfactory to Buyer, as to (i) there
 having been no amendments to the certificate of formation of Seller since the
 date of the certified certificate of formation delivered pursuant to Section
 4.3(d); (ii) Seller’s authorization to execute and perform its
 obligations under the Transaction Documents to which Seller is a party; and
 (iii) incumbency and signatures of the managers or members executing the
 Transaction Documents; 

 
	
  

 	
  

 
	
  

 	
                          (h)         a
 duly executed closing statement, in form and substance reasonably satisfactory
 to Buyer; and 

 
	
  

 	
  

 
	
  

 	
                          (i)          such
 other bills of sale, deeds, endorsements, assignments and other good and
 sufficient instruments of conveyance and transfer, in form reasonably
 satisfactory to Buyer, as Buyer may reasonably request to vest in Buyer all
 the right, title and interest of Seller in, to or under any or all the
 Acquired Assets, together with keys and security codes to locks on any and
 all doors to the Improvements on the Owed Real Property. 

 


ARTICLE 5 

REPRESENTATIONS AND WARRANTIES OF SELLER


          Seller
represents and warrants to Buyer as follows: 


                    5.1          Organization
and Good Standing. Seller is an entity duly organized and validly existing
under the laws of the jurisdiction of its organization. 


                    5.2          Authority;
Validity. Seller has the requisite limited liability company power and
authority necessary to enter into and perform its obligations under this
Agreement and the other Transaction Documents to which 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 Seller and the consummation by Seller of the transactions contemplated
herein and therein has been duly and validly authorized by all requisite limited
liability company action. This Agreement has been duly and validly executed and
delivered by Seller and each other Transaction Document required to be executed
and delivered by Seller at the Closing will be duly and validly executed and
delivered by Seller at the Closing. This Agreement and the other Transaction
Documents constitute, with respect to Seller, the legal, valid and binding
obligations of Seller, enforceable against 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.



                    5.3          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 Seller under (a) any agreement, indenture, or
other instrument to which it is bound, (b) the certificate of formation or
organization, operating agreement, member control agreement, limited liability
company agreement, bylaws or other similar governing documents of Seller, (c)
any Order or (d) any Legal Requirement. 


14







                    
5.4          Owned Real
Property. 


	
  

 	
  

 
	
  

 	
                          (a)          Schedule
 5.4(a) lists, as of the Effective Date, all real property acquired by
 Seller pursuant to the Bankruptcy Order. 

 
	
  

 	
  

 
	
  

 	
                          (b)          Except
 as set forth on Schedule 5.4 (b), Seller has not received written
 notice of any (i) condemnation, eminent domain, expropriation or similar
 Proceeding applicable to the Owned Real Property, (ii) Proceeding to change
 the zoning classification of any portion of the Owned Real Property or (iii)
 imposition of any special assessments for public betterments affecting the
 Owned Real Property, which in the case of each of clauses (i), (ii) and (iii)
 would have, individually or in the aggregate, a Material Adverse Effect. 

 
	
  

 	
  

 
	
                     5.5         
Title; Liens and Encumbrances. 

 
	
  

 	
  

 
	
  

 	
          (a)          Seller
 has not (i) granted any lien or security interest on or in any Acquired Asset
 or (ii) assigned any rights under the Bankruptcy Order. 

 
	
  

 	
  

 
	
  

 	
          (b)          Seller
 owns and has title to each of the Acquired Assets pursuant to the terms of
 the Bankruptcy Order, a copy of which is attached hereto as Exhibit A.
 

 


                    5.6
        Litigation. Except for the Bankruptcy Case or any actions, pleadings,
Orders or Proceedings in connection with said Bankruptcy Case, including the
Bankruptcy Order: (a) there are no Proceedings pending, or to the Seller’s
Knowledge, threatened, against the Seller with respect to the Acquired Assets;
(b) to the Seller’s Knowledge, there are no Proceedings pending or threatened
against the Acquired Assets; (c) no judgments have been filed of record with
any Governmental Authority against Seller with respect to the Acquired Assets;
and (d) to the Seller’s Knowledge, no judgments have been filed of record with
any Governmental Authority against the Acquired Assets. 


                    5.7
        Employment Matters. Seller does not have any employees. Seller has no
written or oral employee benefit plans. 


                    5.8
        Assigned Contracts. To Seller’s Knowledge, no party to any Assigned
Contract other than Freedom Fuels is in material breach or default thereunder,
except for any breaches or defaults that would not, individually or in the
aggregate, have a Material Adverse Effect. 


                    5.9
        Brokers or Finders. Neither Seller nor any Person acting on behalf of
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 Seller shall hold harmless and indemnify Buyer from any claims with
respect to any such fees or commissions. 


ARTICLE 6 

REPRESENTATIONS AND WARRANTIES OF BUYER


          Buyer
represents and warrants to Seller as follows: 


                    6.1
        Organization and Good Standing. Buyer is a limited liability company,
duly organized and validly existing under the laws of the State of Iowa. 


                    6.2
        Authority; Validity. Buyer has the requisite limited liability power and
authority necessary to enter into and perform its obligations under this Agreement
and the other Transaction Documents to which it is a party and to consummate
the transactions contemplated hereby and thereby. The execution, delivery and
performance of this Agreement by Buyer have been duly and validly authorized by
all requisite limited liability company actions in respect thereof. The
consummation by Buyer of the transactions contemplated herein have been duly
and validly authorized by all requisite limited liability company actions in
respect thereof, provided that
the Closing of said transactions by Buyer is subject to Buyer Unitholder
Approval in accordance with Section 7.5(f). This Agreement has been duly
and validly executed and delivered by Buyer and each other Transaction Document
to which Buyer is a party will be duly and validly executed and delivered by
Buyer at the Closing. This Agreement and the other Transaction Documents to
which Buyer is a party constitute the legal, valid and binding obligation of
Buyer, enforceable against Buyer 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.


15





                    6.3
          No Conflict. The execution and delivery of this Agreement and the other
Transaction Documents, and the consummation of the transactions as 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 Buyer under (a) any agreement, indenture, or
other instrument to which it is bound, (b) the certificate of formation or
organization, operating agreement, member control agreement, limited liability
company agreement, bylaws or other similar governing documents of Buyer, (c)
any Order or (d) any Legal Requirement. 


                    6.4
          Availability of Funds. Buyer at the Closing will have at least
$4,000,000.00 in immediately available funds, exclusive of amounts available to
be borrowed under the Loan Documents, to consummate the transactions
contemplated by this Agreement and the other Transaction Documents. 


                    6.5
          Litigation. There are no Proceedings pending or, to the knowledge of
Buyer, threatened, that would affect Buyer’s ability to perform its obligations
under this Agreement or any other Transaction Documents or to consummate the
transactions contemplated hereby or thereby. 


                    6.6
          Brokers or Finders. Neither Buyer nor any Person acting on behalf of
Buyer 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 Seller is or will become
liable, and Buyer shall hold harmless and indemnify Seller from any claims with
respect to any such fees or commissions. 


ARTICLE 7

ACTION PRIOR TO THE CLOSING DATE


                    7.1
          Operations Prior to the Closing Date. Seller covenants and agrees that,
after the Effective Date and prior to the Closing Date, Seller agrees that it
will not sell, lease, transfer or dispose of any Acquired Assets, grant any new
mortgage or security interest on any Acquired Assets in addition to the
Permitted Encumbrances and/or Unpermitted Liens, or modify or amend any
Assigned Contract except as may be approved in writing by Buyer. 


                    7.2
          Governmental Consents; Commercially Reasonable Efforts. 


	
  

 	
  

 
	
  

 	
                          (a)          To
 Seller’s Knowledge, in order for Buyer to operate the Facility, Buyer will be
 required to have the Permits identified in Schedule 7.2(a) transferred
 to Buyer by Governmental Authorities or otherwise issued by Governmental
 Authorities in Buyer’s name, which transfer or issuance will be in the
 discretion of such Governmental Authorities having jurisdiction with respect
 to such Permits, and Seller makes no representation or warranty that Buyer
 will be able to obtain the approval of such Governmental Authorities with
 respect to such transfer or issuance. Further, Seller makes no representation
 or warranty as to whether any Permits in addition to or substitution for said
 Permits identified in Schedule 7.2(a) may be required by any
 Governmental Authority and/or under any Legal Requirement.

 


16









	
  

 	
  

 
	
  

 	
                          (b)          Subject
 to Section 2.5, Seller, on the one hand, and Buyer, on the other hand,
 shall use all commercially reasonable efforts to take, or cause to be taken,
 all actions, and to do, or cause to be done, and to assist and cooperate with
 the other in doing, all things necessary, proper or advisable to consummate
 and make effective, in the most expeditious manner practicable, the
 transactions contemplated hereby, including using all commercially reasonable
 efforts to accomplish the following: (i) the taking of all reasonable acts
 necessary to cause the conditions precedent set forth in Article 9 and
 Article 10 to be satisfied; (ii) the obtaining of all necessary
 Governmental Authorizations (including those referenced in paragraph (a)
 immediately above) and the making of all necessary registrations,
 declarations and filings (including registrations, declarations and filings
 with Governmental Authorities, if any) and the taking of all reasonable steps
 as may be necessary to avoid any Proceeding by any Governmental Authority;
 (iii) the defending of any Proceedings challenging this Agreement or the
 consummation of the transaction contemplated hereby, including seeking to
 have any stay or temporary restraining order entered by any court or other
 Governmental Authority vacated or reversed; (iv) subject to the provisions of
 Section 2.5 and Section 2.6, the taking of all reasonable acts
 necessary to effectuate the transfer of the Assigned Contracts and
 Transferable Permits; and (v) the execution or delivery of any additional
 instruments necessary to consummate the transactions contemplated hereby and
 to fully carry out the purposes of this Agreement. 

 
	
  

 	
  

 
	
  

 	
                          (c)          With
 the exception of any communication or filing involving Buyer and the SEC, to
 which this Section 7.2(c) shall not apply and which instead shall be
 governed by Section 7.5 (including without limitation, the filing of
 the Proxy Statement and periodic reports on Forms 10-K, 10-Q and 8-K,
 including for purposes of making public any private member communication),
 the parties agree as follows: (i) Seller, on the one hand, and Buyer, on the
 other hand, (x) shall promptly inform each other of any communication from
 any Governmental Authority concerning this Agreement, the transactions
 contemplated hereby, and any filing, notification or request for approval,
 and (y) shall permit the other to review in advance any proposed written or
 material oral communication or information submitted to any such Governmental
 Authority in response thereto; (ii) none of Parties shall agree to
 participate in any meeting with any Governmental Authority in respect of any
 filings, investigation or other inquiry with respect to this Agreement or the
 transactions contemplated hereby, unless such Party consults with the other
 Parties in advance (unless such consultation is not permitted by applicable
 Legal Requirements) and, to the extent permitted by any such Governmental
 Authority, gives the other Party the opportunity to attend and participate
 thereat, in each case to the maximum extent practicable; and (iii) subject to
 any restrictions under applicable Legal Requirements, Buyer, on the one hand,
 and Seller, on the other hand, shall furnish the other with copies of all
 correspondence, filings and communications (and memoranda setting forth the
 substance thereof) between it and its Affiliates and their respective
 Representatives on the one hand, and the Governmental Authority or members of
 its staff on the other hand, with respect to this Agreement, the transactions
 contemplated hereby (excluding documents and communications which are subject
 to preexisting confidentiality agreements or to the attorney-client privilege
 or work-product doctrine) or any such filing, notification or request for
 approval. Each Party also shall furnish the other Party with such necessary
 information and assistance as such other Party and its Affiliates may
 reasonably request in connection with their preparation of necessary filings,
 registration or submissions of information to the Governmental Authority in
 connection with this Agreement, the transactions contemplated hereby and any
 such filing, notification or request for approval. No Party shall be required
 by this Section 7.2 to provide any communication or information, or
 take any other action, that would violate any Legal Requirement or
 confidentiality agreement or that would cause the loss of any protections
 provided by the attorney-client privilege or work-product doctrine.

 


17





                    7.3          Operating
Permits. As soon as practicable following the Effective Date, Buyer shall
file all applications and undertake all activities reasonably necessary to
obtain from any Governmental Authority with jurisdiction over the Facility or
the operations thereof, any and all such approvals, consents, or other
authorizations or Permits necessary for Buyer or any agents or affiliates
thereof to produce biodiesel or any co-products, bi-products or wastes associated
with such biodiesel production or otherwise to operate the Facility. 


                    7.4          Due
Diligence. From the Effective Date until the earlier of the Due Diligence
Expiration Date or the termination of this Agreement: 


	
  

 	
  

 
	
  

 	
                         (a)          Seller
 shall furnish to Buyer and its authorized Representatives such additional
 information relating to the Facility or other Acquired Assets as Buyer shall
 reasonably request and shall permit Buyer to make reasonable investigations
 of the Facility and the other Acquired Assets and have reasonable access to
 the Facility to complete its due diligence, provided
 that Buyer shall be obligated to obtain all consents or approvals required
 by, and otherwise comply with the terms of, Section 2.5(b), and
 Seller’s duties under this Section 7.4 shall be subject to Buyer’s
 compliance with said Section 2.5(b). Without limiting the generality
 of the foregoing, Seller shall furnish Buyer, with respect to the Owned Real
 Property, any existing surveys, legal descriptions and title policies that
 are in the possession of Seller. 

 
	
  

 	
  

 
	
  

 	
                         (b)          Buyer
 shall furnish to Seller and its authorized Representatives such additional
 information relating to Buyer as Seller shall reasonably request and shall
 permit Seller to make reasonable investigations of Buyer’s financial records
 and other documentation and information in Buyer’s possession that may be
 relevant to the transactions contemplated herein. 

 
	
  

 	
  

 
	
  

 	
                         (c)          Each
 Party and its officers, directors, employees, agents and representatives
 (including legal, accounting and financial advisors) shall treat all
 documentation and information received pursuant to the due-diligence
 investigation contemplated in this Section 7.4 as strictly
 confidential, and shall not disclose such documentation or information to any
 Person, other than said Party’s officers, directors, employees, agents and/or
 representatives in connection with the evaluation thereof and consummation of
 the transactions contemplated herein, except to the extent (a) such
 disclosure is required by any law, rule or regulation, or by any Governmental
 Authority, (b) such documentation and information is or becomes generally
 available to the public other than as a result of a disclosure by the Party
 receiving such documentation and information hereunder or by any of its
 officers, directors, employees, agents and/or representatives, (c) such
 documentation and information was obtained by the Party receiving the same
 hereunder, or by any of its officers, directors, employees, agents and/or
 representatives, on a non-confidential basis before or after said receipt
 pursuant to this Agreement, from someone other than the Party delivering such
 documentation and information hereunder or its officers, directors,
 employees, agents and/or representatives. In the event that the transactions
 contemplated herein are not consummated and this Agreement is terminated, the
 Party receiving such confidential documentation and information hereunder and
 its officers, directors, employees, agents and/or representatives shall, upon
 the request of the disclosing Party, return to the disclosing Party or
 destroy all materials received pursuant to this Section 7.4. 

 
	
  

 	
  

 
	
  

 	
                         (d)          Subject
 to Section 9.5, Buyer shall cooperate with Seller in all reasonable
 respects in connection with Seller obtaining the Title Commitment and
 documentation related thereto; provided
 that Seller shall not be required to provide an updated survey of the Owned
 Real Estate, but Seller shall, to the extent required by the Title Company to
 issue the Title Policy, reasonably cooperate with Buyer in obtaining an
 update of the existing survey of the Owned Real Estate, and provided further that nothing in this Section
 7.4(d) shall require Seller to make any expenditure or incur any
 obligation on its own or on behalf of Buyer.

 


18









	
  

 	
  

 
	
  

 	
           7.5          Preparation
 of the Proxy Statement; Unitholder Meeting. 

 
	
  

 	
  

 
	
  

 	
                          (a)          As
 soon as practicable following the date of this Agreement, but in no event
 later than thirty (30) days after the Effective Date, Buyer shall prepare and
 file the Proxy Statement with the SEC. Seller shall have a reasonable
 opportunity to review the Proxy Statement and any supplement thereto prior to
 the filing or submission thereof to the SEC. 

 
	
  

 	
  

 
	
  

 	
                          (b)          Buyer,
 after filing the Proxy Statement, shall as promptly as practical provide to
 or file with the SEC, to the extent required by applicable Legal
 Requirements, any additional information with respect to or any supplement or
 amendment to the Proxy Statement as required by the SEC, or take such other
 action as is required by the SEC in connection with the filing of the Proxy
 Statement. 

 
	
  

 	
  

 
	
  

 	
                          (c)          If
 at any time prior to the Buyer Unitholder Meeting (as defined below), any
 information relating to Seller or Buyer, or any of their respective
 Affiliates, directors or officers, or any of transactions contemplated by
 this Agreement, is discovered by Buyer such that Buyer determines that, under
 applicable Legal Requirements, said information must be set forth in an
 amendment or supplement to the Proxy Statement, Buyer (i) shall promptly
 notify Seller of such determination, and (ii) as soon as practical after such
 discovery, shall promptly file with the SEC an amendment or supplement
 describing such information, and, to the extent required by applicable Legal
 Requirements, disseminate such information to the unitholders of Buyer. 

 
	
  

 	
  

 
	
  

 	
                          (d)          Buyer,
 as soon as practical following receipt of notification from the SEC that it
 has no further comments on the Proxy Statement, and subject to compliance
 with SEC requirements and the requirements of Buyer’s operating agreement and
 applicable Legal Requirements, shall establish a record date for, duly call,
 give notice of, convene and hold a special meeting of its unitholders (the “Buyer
 Unitholder Meeting”) for the purpose of obtaining the Buyer Unitholder
 Approval. Buyer, through its Board of Directors, subject to the fiduciary
 duties of said Board, shall recommend to Buyer’s unitholders approval of the
 transactions contemplated herein in accordance with the terms of this
 Agreement. 

 
	
  

 	
  

 
	
  

 	
                          (e)          Buyer
 shall promptly notify Seller in writing when (i) Buyer has received
 notification from the SEC that it has no further comments on the Proxy
 Statement, and (ii) the Buyer Unitholder Approval has been obtained or has
 been denied at the Buyer Unitholder Meeting. 

 
	
  

 	
  

 
	
  

 	
                          (f)          Notwithstanding
 anything else provided in this Agreement, and regardless of any actions or
 efforts taken by Buyer or by any other party (including the SEC, the Board of
 Directors of Buyer, or the unitholders of Buyer), if for any reason Buyer
 Unitholder Approval has not been obtained by Buyer on or before the date one
 hundred (100) days after the Effective Date (the “Unitholder Approval
 Deadline”), then Seller shall have the right to terminate this Agreement
 pursuant to Article 12. In the event that Seller exercises any such
 termination right at any time after the expiration of the Unitholder Approval
 Deadline, Seller thereafter shall have no further obligations under this
 Agreement, provided, that
 Seller shall be entitled to have the Deposit disbursed immediately to it
 under the Deposit Escrow Agreement and Section 2.7 notwithstanding the
 exercise of such termination right. 

 


19





ARTICLE 8

ADDITIONAL AGREEMENTS


	
  

 	
  

 
	
  

 	
           8.1          Taxes.
 Solely in the event of and following the Closing: 

 
	
  

 	
  

 
	
  

 	
                          (a)          Seller
 shall be responsible for paying, when due, any and all sales, use, property
 transfer, documentary, stamp, registration, recording or similar Tax payable
 in connection with the sale or transfer of the Acquired Assets (“Transfer
 Taxes”), provided that the actual amount of such Transfer Taxes and any
 out-of-pocket expenses incurred in connection with the preparation and filing
 of any Tax Returns in connection with such Transfer Taxes shall be shared
 equally by Seller and Buyer. After Seller has paid such Transfer Taxes and
 any costs of preparing the applicable Tax Returns, Seller shall invoice Buyer
 for Buyer’s share of such amounts, and Buyer shall promptly reimburse Seller
 for Buyer’s share of the same. Seller and Buyer shall use reasonable efforts
 and cooperate in good faith to exempt the sale and transfer of the Acquired
 Assets from any such Transfer Taxes. Seller shall prepare and file all
 necessary Tax Returns or other documents with respect to all such Transfer
 Taxes. In the event any such Tax Return requires execution by Buyer, Seller
 shall prepare and deliver to Buyer a copy of such Tax Return at least five
 days before the due date thereof, and Buyer shall, subject to its review and
 approval of such Tax Return, promptly execute such Tax Return and deliver it
 to Seller, which shall cause it to be filed. 

 
	
  

 	
  

 
	
  

 	
                          (b)          All
 real and personal property Taxes, similar ad valorem obligations levied with
 respect to the Acquired Assets and other similar obligations (“Periodic
 Taxes”) payable in the year 2010 (regardless of the year for which such
 Periodic Taxes have been or are assessed) shall be prorated between Buyer and
 Seller as of the Closing Date. Buyer shall be responsible for preparing and
 filing any and all Tax Returns required to be filed after the Closing Date
 with respect to Periodic Taxes; provided,
 however, that such Tax Returns
 shall, to the extent they relate to a taxable period included in the period
 ending with and including the Closing Date, be subject to the review and
 approval of Seller, which approval shall not be unreasonably withheld or
 delayed. All Periodic Taxes payable after the year 2010 (regardless of the
 year for which such Periodic Taxes have been or are assessed) shall be borne
 by Buyer. 

 
	
  

 	
  

 
	
  

 	
                          (c)          Without
 limiting the generality of the foregoing clause (b), Seller shall pay its
 allocable share of the fiscal year 2009/2010 real estate Taxes due in fiscal
 year 2010/2011, prorated through the Closing Date, and any unpaid real estate
 Taxes payable in prior years. Buyer shall pay all subsequent real estate
 Taxes. Seller shall pay on the Closing Date any installments of any special
 assessments which are a lien on the Property as of the Closing Date to the
 extent such special-assessment installments are actually due prior to the
 Closing Date. Buyer shall pay all other special assessments or installments
 not payable by Seller. 

 
	
  

 	
  

 
	
  

 	
                          (d)          Buyer
 and Seller agree to furnish or cause to be furnished to each other, upon
 request, as promptly as practicable, such information and assistance relating
 to the Facility and the other Acquired Assets (including access to books and
 records) as is reasonably necessary for the filing of all Tax Returns, the
 making of any election relating to Taxes, the preparation for any audit by
 any taxing authority and the prosecution or defense of any claims, suit or
 proceeding relating to any Tax; provided,
 however, that neither Buyer nor
 any Seller shall be required to disclose the contents of its income Tax
 Returns to any Person. Any expenses incurred in furnishing such information
 or assistance pursuant to this Section 8.1(c) shall be borne by the
 Party requesting it. 

 


20





                    8.2          Payments
Received. Seller and its Affiliates, on the one hand, and Buyer, on the
other hand, each agree that, after the Closing, each will hold and will
promptly transfer and deliver to the other, from time to time as and when
received by them, any cash, checks with appropriate endorsements (using their
best efforts not to convert such checks into cash) or other property that they
may receive on or after the Closing which properly belongs to the other and
will account to the other for all such receipts. 


                    8.3          No
Other Representations or Warranties. 


	
  

 	
  

 
	
  

 	
                         (a)          Buyer
 acknowledges that, except for the representations and warranties contained in
 Article 5, neither Seller nor any other Person on behalf of Seller
 makes in this Agreement, or has made verbally or in writing in any other
 instrument or document other than the Agreement, any express or implied
 representation or warranty with respect to Seller or any of the Acquired
 Assets (including representations and warranties as to title to or the
 condition of the Facility or any other Acquired Assets or as to any
 Confidentiality Arrangements or Potentially Confidential Information with
 respect to the Assigned Contracts or any other Acquired Assets) or with
 respect to any information provided by or on behalf of Seller to Buyer.
 Buyer’s acceptance of the Deed pursuant to Article 4 of this Agreement
 shall constitute Buyer’s acknowledgement and agreement (i) that neither
 Seller nor any Person on behalf of Seller has made any written or verbal
 warranty or representation of any kind with respect to the Acquired Assets,
 Assumed Liabilities or Excluded Liabilities; (ii) that Buyer has not relied
 upon any written or verbal representation or warranty made by Seller or any
 other Person on behalf of Seller with respect to the Acquired Assets, Assumed
 Liabilities or Excluded Liabilities; (iii) that Buyer has had such
 opportunity as it considers adequate to inspect and examine the Facility and
 other Acquired Assets, and Buyer in fact has conducted such inspections and
 examinations and such other due diligence as it considers reasonable and
 necessary; and (iv) that based upon said inspections, examinations and other
 due diligence, Buyer has determined that the Acquired Assets in their
 condition as of the Closing (which condition shall be “AS IS,” “WHERE IS” and
 “WITH ALL FAULTS” pursuant to Section 8.4) is fit for and compatible
 with Buyer’s intended use and purposes. 

 
	
  

 	
  

 
	
  

 	
                         (b)          In
 connection with investigation by Buyer, Buyer has received or may receive
 from Seller certain projections, forward-looking statements and other
 forecasts and certain business plan information. Buyer acknowledges that
 there are uncertainties inherent in attempting to make such estimates,
 projections and other forecasts and plans, that Buyer is familiar with such
 uncertainties, that Buyer is taking full responsibility for making its own
 evaluation of the adequacy and accuracy of all estimates, projections and
 other forecasts and plans so furnished to it (including the reasonableness of
 the assumptions underlying such estimates, projections, forecasts or plans),
 and that Buyer shall have no claim against anyone with respect thereto.
 Accordingly, Buyer acknowledges that Seller make no representation or
 warranty with respect to such estimates, projections, forecasts or plans
 (including the reasonableness of the assumptions underlying such estimates,
 projections, forecasts or plans). 

 


21





                    8.4          Acquired
Assets “AS IS”; Buyer’s Acknowledgment Regarding Same. Buyer agrees,
warrants and represents that (a) subject to the representations, warranties,
terms and conditions contained in this Agreement, Buyer is purchasing the
Acquired Assets on an “AS IS,” “WHERE IS” and “WITH ALL FAULTS” basis as of the
Closing Date based solely on Buyer’s own investigation of the Acquired Assets
and (b) except as set forth in this Agreement, neither Seller nor any broker or
other Representative of Seller has made any warranties, representations or
guarantees, express, implied or statutory, written or oral, respecting the
Acquired Assets, any part of the Acquired Assets, the financial performance of
the Acquired Assets, or the physical or environmental condition of the Acquired
Assets. Buyer further acknowledges that the consideration for the Acquired
Assets specified in this Agreement has been agreed upon by Seller and Buyer
after good-faith arms-length negotiation in light of Buyer’s agreement to
purchase the Acquired Assets “AS IS,” “WHERE IS,” and “WITH ALL FAULTS”. Buyer
agrees, warrants and represents that, except as set forth in this Agreement,
Buyer has relied, and shall rely, solely upon its own investigation of all such
matters, and that Buyer assumes all risks with respect thereto. EXCEPT AS SET
FORTH IN THIS AGREEMENT, SELLER MAKES NO EXPRESS WARRANTY, NO WARRANTY OF
MERCHANTABILITY, NO WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, AND NO
IMPLIED OR STATUTORY WARRANTY WHATSOEVER WITH RESPECT TO ANY REAL OR PERSONAL
PROPERTY OR ANY FIXTURES OR THE ACQUIRED ASSETS. 


                    8.5          Mobilization,
Utilities. Buyer hereby acknowledges that the Facility is not in operation
as of the Effective Date, and that prior to commencement of operation of the
Facility various costs and expenses with respect to mobilization, evaluation
and/or start-up may need to be incurred, including, for example, charges
relating to utilities, Equipment or components of the Facility to confirm that
the same are available and in working order. Buyer shall pay all such
mobilization, evaluation and/or start-up costs and expenses regardless of
whether the same are incurred before or after the Closing Date; provided, however, that no such
mobilization, evaluation and/or start-up costs and expenses for which Buyer
will be responsible shall be incurred prior to the Closing Date unless
requested, or consented to, by Buyer; and provided
further that to the extent that any utility charges have been
incurred by Seller prior to the Closing Date for purposes of “mothballing” the
Facility, Seller shall be responsible for such utility charges. 


22






                    8.6          Reserve;
Certain Insurance Matters. 


	
  

 	
                         (a)          On
 the Closing Date, Buyer shall establish a cash reserve in the amount of
 $250,000 or such lesser amount as is established under subparagraph (b)
 immediately below (the “Hold Back”). Buyer shall deposit the Hold Back on the
 Closing Date with the Hold-Back Escrow Agent in cash payable by wire transfer
 or other immediately available funds which shall be governed by the terms of
 this Section 8.6 and the Hold-Back Escrow Agreement. Interest shall be
 payable on the Hold Back as set forth in the Hold-Back Escrow Agreement. The
 Hold Back shall not be included as part of the Deposit required by Section
 2.7. 

 
	
  

 	
  

 
	
  

 	
                         (b)          The
Hold Back shall be used solely for the purposes set forth in, and in
accordance with, this Section 8.6, Schedule 8.6(a) identifying
certain Facility repairs, and Schedule 8.6(b) identifying certain
environmental investigatory and corrective actions with respect to the
Environmental Condition and the Facility. Within one hundred twenty (120)
days after the Effective Date, the Parties shall mutually agree on the scope
of work to be completed under Schedule 8.6(a) referenced below. Within
sixty (60) days after the Effective Date, the Parties shall mutually agree on
the scope of work to be completed under Schedule 8.6(b) referenced
below. Each of said agreements shall include necessary line-item details for
the work to be performed, time schedules, budgets, and Hold-Back draw
procedures; provided, however, that the scopes of work, time schedules
and budgets shall be based on reasonable and customary industry standards
with respect to the Facility repairs and environmental investigatory and
corrective actions contemplated by Schedules 8.6(a) and (b)
(collectively, the “Work”); and provided further that the budgets in
aggregate for the Work shall not exceed $250,000. If the Parties are not able
to mutually agree on the Work (including the time schedules and budgets)
required by this subparagraph (b) within sixty (60) days of the Effective
Date for the Work contemplated by Schedule 8.6(b) or within one
hundred twenty (120) days of the Effective Date for the Work contemplated by Schedule
8.6(a), and Closing hereunder has not yet occurred on or before either of
these applicable deadlines, then this Agreement shall terminate unless the
Parties otherwise agree on protocols and procedures for implementing this Section
8.6. 

 
	
  

 	
  

 
	
  

 	
                         (c)          Buyer
 shall complete the Work as contemplated by Schedule 8.6(a) and Schedule
 8.6(b), in each case in accordance with the scopes of work and time
 schedules referenced in subparagraph (b) immediately above and in compliance
 with all applicable Legal Requirements. Buyer shall be solely responsible for
 completing the Work, and Seller shall have no responsibility for said Work
 except for providing funds in connection therewith pursuant to the Hold Back
 and, if applicable, the Insurance Funds (defined below), in accordance with
 this Section 8.6. Buyer, at its expense (provided said expense
 shall include Buyer’s access to the Hold Back and if applicable, Insurance
 Funds as set forth in this Section 8.6), shall be responsible for
 completing the Work regardless of the cost thereof, including if such cost
 exceeds the amounts budgeted pursuant to subparagraph (b) above and/or
 exceeds the amounts in the Hold-Back and, if applicable, the Insurance Funds.

 
	
  

 	
  

 
	
  

 	
                         (d)          Upon
 the mutual agreement and direction of the Parties, as more fully set forth in
 the Hold-Back Escrow Agreement, the Hold-Back Escrow Agent shall directly
 disburse funds, on behalf of Buyer, to third parties for payment of the Work
 that they have performed on behalf of Buyer in accordance with this Section
 8.6, up to a maximum amount equal to the (i) the Hold Back, and (ii) if
 applicable under subparagraph (f) below, the Insurance Funds, provided that
 such payment shall be subject to the following: (i) such Work has satisfied
 the requirements of Schedule 8.6(a) and Schedule 8.6(b), as
 applicable, including the scopes of work and time schedules established in
 connection therewith; (ii) the Work is completed in compliance with
 applicable Legal Requirements; (iii) the payments are for reasonable,
 out-of-pocket expenses actually incurred by Buyer to third parties to
 complete the Work and (iv) Buyer has satisfied the protocols and procedures
 governing the Hold-Back Escrow Agreement, including those procedures
 requiring Borrower to provide evidence, in a form reasonably satisfactory to
 Seller, of the amounts actually due to such third parties for the Work. 

 


23









	
  

 	
  

 
	
  

 	
                         (e)          Buyer
 shall make all requests for payment to third parties pursuant to subparagraph
 (d) of this Section 8.6 no later than the first annual anniversary of
 the Closing Date (the “Payment Deadline”). In the event that amounts paid
 under said subparagraph (d) for the Work performed are less than the amount
 of the Hold Back, then the undistributed balance of the Hold Back shall be
 paid to Seller no later than five (5) business days after the expiration of
 the Payment Deadline.

 
	
  

 	
  

 
	
  

 	
                         (f)          Seller
 shall utilize commercially reasonable efforts to obtain any reimbursement or
 other recovery (“Insurance Funds”) contractually available to Seller
 from the Chubb Group of Insurance Companies (“Chubb”) under that
 certain energy industries insurance policy number 3584-88-77-CHI to the
 extent said policy is applicable to the environmental investigatory and
 corrective actions required under Schedule 8.6(b). The parties
 acknowledge that there is no pending claim with Chubb for said Insurance
 Funds, if any, and no determination has been made by Seller as to whether
 there is a basis for such claim. If Seller obtains any such Insurance Funds
 with respect to said environmental investigatory and corrective actions, then
 Seller shall promptly convey to Buyer such Insurance Funds less any actual
 costs incurred by Seller in obtaining said Insurance Funds, but only to the
 extent that the amount of the Hold Back paid pursuant to subparagraph (d) of this
 Section 8.6 is less than the reasonable, out-of-pocket costs actually
 incurred by Buyer for the Work. Buyer shall reasonably cooperate with Seller
 in connection with Seller’s efforts to obtain Insurance Funds under this
 subparagraph (f), including providing Seller with documentation and other
 information reasonably requested by Seller with respect to any Work performed
 by Buyer and any costs incurred in connection with such Work.

 
	
  

 	
  

 
	
  

 	
                         (g)          In
no event shall the aggregate funds disbursed on behalf of Buyer under this
Section 8.6 in respect of the Hold Back and if applicable, the Insurance
Funds exceed the reasonable, out-of-pocket costs actually incurred by Buyer
in completing the Work. 

 
	
  

 	
  

 
	
  

 	
                         (h)          Buyer
 shall promptly certify in writing to Seller when the Work required under this
 Section 8.6 has been completed.

 
	
  

 	
  

 
	
  

 	
                         (i)          Seller
 shall have the right, but not the duty, to inspect said Work from time to
 time as it is being performed by Buyer, and within thirty (30) days after
 Buyer has provided the certification of completion required under
 subparagraph (h) immediately above. Buyer shall provide Seller with such
 reports and other information with regard to the status of the completion of
 the Work, and of the costs incurred in connection therewith, as Seller
 reasonably requests from time to time. 

 


ARTICLE
9
CONDITIONS PRECEDENT TO OBLIGATIONS OF BUYER TO CLOSE


          The
obligations of Buyer to consummate the transactions contemplated by this
Agreement are subject to the satisfaction or waiver, at or prior to the Closing
or such earlier date as set forth below, of each of the following conditions.
To the extent that the deadline for satisfaction of any of the conditions set forth
below is on a date prior to the Closing Deadline, Buyer shall be deemed to have
waived such condition as a condition precedent to Closing if it does not object
in writing, delivered to Seller, on or before the applicable deadline: 


24





                    9.1       Accuracy
of Representations. Each of the representations and warranties of Seller
contained in Article 5 shall be true and correct in all material
respects as of the date of this Agreement and as of the Closing Date as though
made on and as of the Closing Date, and Buyer shall have received a certificate
of Seller to such effect signed by a duly authorized officer thereof.


                    9.2       Seller’s
Performance. Seller shall have performed and complied with in all material
respects the covenants and agreements that Seller is required to perform or
comply with pursuant to this Agreement at or prior to the Closing, and Buyer
shall have received a certificate of Seller to such effect signed by a duly
authorized officer thereof.


                    9.3       Seller’s
Deliveries. Each of the deliveries required to be made to Buyer pursuant to
Section 4.3 shall have been so delivered.


                    9.4       Due
Diligence. Buyer shall not have terminated this Agreement, on or before the
Due Diligence Expiration Date, in accordance with Section 12.1(b) hereof
as a result of its due diligence investigation pursuant to Section 7.4(a).


                    9.5       Title
Policy and Objections. Buyer’s Objections (as defined herein), if any,
shall have been satisfied or waived pursuant to this Section 9.5:


	
  

 	
  

 
	
  

 	
                       (a)          Seller
 shall provide to Buyer, by no later than forty-five (45) days after the
 Effective Date, from First American Title Insurance Company or such other
 title company mutually agreed upon by the Parties (the “Title Company”),
 a commitment (the “Title Commitment”) for an owner’s title insurance
 policy on the Owned Real Property (the “Title Policy”) in form and
 substance reasonably acceptable to Buyer, insuring Buyer as having fee simple
 title to the Owned Real Property, subject only to Permitted Encumbrances that
 Buyer has not objected to or waived pursuant to Section 9.5(c). 

 
	
  

 	
  

 
	
  

 	
                       (b)          Seller
 shall, to the extent required by the Title Company to issue the Title Policy,
 reasonably cooperate with Buyer in obtaining an update of the existing survey
 of the Owned Real Property, provided in connection therewith Seller
 shall not be required to make any expenditure or incur any obligation on its
 own or on behalf of Buyer, and Buyer shall be responsible for obtaining any
 such survey update. 

 
	
  

 	
  

 
	
  

 	
                       (c)          Buyer
 shall have twenty (20) days after receipt of the Title Commitment to provide
 Seller with written notice (the “Objections”) specifying any
 Encumbrances to which Buyer objects and any other alleged defects in the
 title to the Owned Real Property. Buyer’s failure to provide such Objections
 within said twenty (20)-day limit shall constitute a waiver of Objections
 with respect to any matters disclosed in the Title Commitment. Seller, in its
 sole discretion, may undertake to cure any Objections timely delivered by
 Buyer in accordance with this Section 9.5, but Seller shall have no
 obligation to do so. Seller also may elect, in its sole discretion, not to
 cure any Objections, in which event Seller may elect to terminate this
 Agreement in accordance with Article 12. If Seller commences to cure
 any Objection, such election shall not preclude Seller from thereafter, at
 any time, ceasing such cure and terminating this Agreement pursuant to Article
 12. If, in connection with any Objections from Buyer, Seller provides
 notice of termination in accordance with Article 12, Buyer may
 thereafter waive any or all Objections, and Seller then may not exercise its
 termination rights relating to said waived Objection if Buyer provides Seller
 with written notice of its waiver of said Objection within three (3) business
 days after receiving Seller’s notice of termination, provided that if Buyer at
 any time elects to waive less than all of its Objections, nothing shall
 prevent Seller from exercising its termination rights under Article 12
 with respect to any Objection not waived by Buyer. In the event that Buyer
 makes any timely Objections hereunder, and Seller exercises its cure rights
 with respect thereto and does not terminate this Agreement in connection
 therewith, the Title Policy shall be revised, to the reasonable satisfaction
 of Buyer and Seller, to incorporate any such cure completed or caused by
 Seller.

 


25









	
  

 	
  

 
	
  

 	
                       (d)          The
 Title Company at Closing shall issue a Title Policy without any material
 revisions to the Title Commitment except for such revisions made in
 accordance with subparagraph (c) immediately above to reflect any cure
 completed or caused by Seller in response to timely Objections from Buyer.

 



                    9.6        Lien
Search Results. Buyer shall have received, at its sole expense, results of
UCC, tax, lien, judgment and pending suit searches, confirming the absence of
Encumbrances on the Acquired Assets (other than Permitted Encumbrances and the
Unpermitted Liens) that would have a Material Adverse Effect; provided,
however, that nothing in this Section 9.6 shall affect the
representations and warranties of Seller set forth herein.


                    9.7        Damage
to Acquired Assets. There shall not have occurred any damage, loss,
destruction or condemnation of Acquired Assets that would have a Material
Adverse Effect.


                    9.8        Financing.
Seller and Buyer shall have entered into the Loan Documents, and all conditions
precedent contained in the Loan Documents shall have been satisfied or waived
such that the lender(s) under the Loan Documents shall be obligated to advance
on the Closing Date $6,000,000 for Buyer to consummate the transactions
contemplated by this Agreement.


                    9.9        Buyer
Unitholder Approval. Buyer shall have obtained the Buyer Unitholder
Approval in accordance with Section 7.5(f).


                    9.10       No
Order. No Governmental Authority shall have enacted, issued, promulgated or
entered any Order which is in effect and which has the effect of making illegal
or otherwise prohibiting the consummation of the transactions contemplated by this
Agreement.


                    9.11       Governmental
Authorizations. Any Governmental Authorizations necessary for consummation
of the transactions contemplated by this Agreement shall have been obtained by
the Due Diligence Expiration Date.


                    9.12       Consents.
Any consents or approvals required of any third parties, including any Persons
participating in the transactions contemplated by the Loan Documents, have been
obtained by Buyer, provided, that all such third-party
consents or approvals, other than the Buyer Unitholder Approval (which shall be
subject to the Unitholder Approval Deadline) and other than those from any of
the lenders under the Loan Documents, shall have been obtained by the Due
Diligence Expiration Date.


                    9.13        IDED.
A lien waiver shall have been obtained by Seller, by the Due Diligence
Expiration Date, from the Iowa Department of Economic Development (“IDED”)
confirming that IDED’s claim in the Bankruptcy Case has been satisfied, waived
or otherwise resolved. 


                    9.14        Seller’s
Cure Rights. In the event that Buyer elects not to close the transactions
contemplated by this Agreement because any condition precedent under this Article
9 has not been satisfied, and such condition has not been waived, Buyer
shall provide Seller with a written notice specifying each such condition
precedent that Buyer asserts has not been satisfied. Upon receipt of such
written notice, Seller in its sole discretion shall have the right, but not the
obligation, to cure any such unsatisfied condition, but only to the extent that
Seller can actually cure such unsatisfied condition. In the event that Seller
has completed said cure and caused such conditions to be satisfied in
accordance with this Article 9 within twenty (20) days after receiving
such written notice from Buyer (or such shorter cure period as applicable to Sections
9.1—9.3 under Article 12), then Buyer shall be required to close the
transactions herein contemplated; provided, however, that in the event
that any condition shall have been cured by Seller before the termination of
the applicable cure-period, then at the election of Buyer, the Closing Date
shall be extended by the number of days actually elapsed before the completion
of said cure.  


26






ARTICLE 10

CONDITIONS PRECEDENT TO THE OBLIGATION OF SELLER TO CLOSE 


          Seller’s
obligation to consummate the transactions contemplated by this Agreement is
subject to the satisfaction or waiver, at or prior to the Closing, of each of
the following conditions:


                    10.1     Accuracy
of Representations. Each of the representations and warranties of Buyer
contained in Article 6 shall be true and correct in all material
respects as of the date of this Agreement and as of the Closing Date as though
made on and as of the Closing Date, and Seller shall have received a
certificate of Buyer to such effect signed by a duly authorized officer
thereof.


                    10.2     Buyer’s
Performance. Buyer shall have performed and complied with in all material
respects the covenants and agreements that Buyer is required to perform or
comply with pursuant to this Agreement at or prior to the Closing, and Seller
shall have received a certificate of Buyer to such effect signed by a duly
authorized officer thereof.


                    10.3     Buyer’s
Deliveries. Each of the deliveries required to be made to Seller pursuant
to Section 4.2 shall have been so delivered. 


                    10.4     Due
Diligence. Seller shall be satisfied with the results of its due diligence
investigation pursuant to Section 7.4(b), including any due diligence
relating to Buyer’s compliance with the requirements of the Loan Documents, and
Seller shall have received any consents or approvals of any Persons necessary for
execution of the Loan Documents and consummation of the transactions
contemplated by said Loan Documents, including any consents and approvals from
any and all participants in the loan to be made pursuant to the Loan Documents.


                    10.5     No
Order. No Governmental Authority shall have enacted, issued, promulgated or
entered any Order which is in effect and which has the effect of making illegal
or otherwise prohibiting the consummation of the transactions contemplated by
this Agreement.


                    10.6     Governmental
Authorizations. Any Governmental Authorizations necessary for consummation
of the transactions contemplated by this Agreement shall have been obtained.


                    10.7     Consents.
Any consents or approvals required of any third parties, including any Persons
participating in the transactions contemplated by the Loan Documents, have been
provided.


                    10.8     Financing.
Seller and Buyer shall have entered into the Loan Documents, and all conditions
precedent contained in the Loan Documents shall have been satisfied or waived
such that the lender(s) under the Loan Documents shall be obligated to advance
on the Closing Date $6,000,000 for Buyer to consummate the transactions
contemplated by this Agreement.


27





                    10.9     IDED.
A lien waiver shall have been obtained from the Iowa Department of Economic
Development (“IDED”) confirming that IDED’s claim in the Bankruptcy Case
has been satisfied, waived or otherwise resolved.


                    10.10   Buyer’s
Cure Rights. In the event that Seller elects not to close the transactions
contemplated by this Agreement because any condition precedent under this
Article 10 has not been satisfied, and such condition has not been waived,
Seller shall provide Buyer with a written notice specifying each such condition
precedent that Seller asserts has not been satisfied. Upon receipt of such
written notice, Buyer in its sole discretion shall have the right, but not the
obligation, to cure any such unsatisfied condition, but only to the extent that
Buyer can actually cure such unsatisfied condition. In the event that Buyer has
completed said cure and caused such conditions to be satisfied in accordance
with this Article 10 within twenty (20) days after receiving such
written notice from Seller (or such shorter cure period as applicable to Sections
10.1—10.3 under Article 12), then Seller shall be required to close
the transactions herein contemplated; provided, however, that in the event that
any condition shall have been cured by Buyer before the termination of the
applicable cure-period, then at the election of Seller, the Closing Date shall
be extended by the number of days actually elapsed before the completion of
said cure. 


ARTICLE 11

LIMITED EXCLUSIVITY 


                    11.1     Buyer’s
Limited Exclusive Window. Unless this Agreement has been earlier terminated
by either Party in accordance with Article 12, Seller shall not enter
into any written or oral agreement or written or oral understanding to sell,
agree in writing to sell, or sell the Acquired Assets to any party other than
Buyer, including by way of merger, consolidation or other business combination
of Seller with such party (hereinafter a “Third-Party Sale”), from the
period commencing on the Effective Date and ending at 12:00 midnight Central
time on the Expiration Date (such period hereinafter shall be referred to as
the “Buyer’s Window”); provided, that in the event that Buyer, in
accordance with Section 7.5, on or before the Expiration Date: (a)
notifies Seller that Buyer has obtained Buyer Unitholder Approval before
expiration of the Unitholder Approval Deadline, and (b) makes the Deposit in
compliance with Section 2.7, then the ending date for Buyer’s Window
shall be extended until 12:00 midnight Central time on the Closing Deadline.


                    11.2     Seller’s
Safe Harbor. The Parties acknowledge and agree that the purpose and effect
of Section 11.1 is to provide Buyer with a limited exclusive opportunity
to consummate the transactions contemplated by this Agreement during the
Buyer’s Window if all of the terms and conditions of this Agreement are
satisfied, and that this Article 11 is not intended to impose “no-shop”
obligations or restrictions upon Seller. Without limiting the generality of the
immediately proceeding sentence, nothing in this Article 11 is intended
to limit, restrict or prohibit, and shall not act to limit, restrict or
prohibit, the ability or right of Seller or any of its owners, directors,
officers, employees, representatives or agents from taking any action, directly
or indirectly, to: (A) participate, initiate, engage or otherwise enter in or
entertain (including by way of furnishing or disclosing information with
respect to the Acquired Assets or providing access to the Acquired Assets for
purposes of inspection or evaluation) any communications or negotiations with
any third party concerning any sale and purchase or other form of acquisition
of the Acquired Assets or any portion thereof (including by way of merger,
consolidation or other business combination involving the Seller), or
participate, initiate, engage or otherwise enter in or entertain inquiries or
proposals concerning, or which could reasonably be expected to lead to, any of the
foregoing (collectively, hereinafter a “Potential Acquisition Transaction”);
or (B) negotiate or perform any other activity intended or designed to
facilitate the efforts of any third party relating to a Potential Acquisition
Transaction; provided, that Seller may not enter into any agreement or
understanding requiring the Seller to abandon, terminate or fail to consummate
the sale of the Acquired Assets to Buyer during Buyer’s Window as contemplated
by this Agreement.


28






ARTICLE 12

TERMINATION 


                    12.1     Termination Events. Anything contained in this Agreement to the contrary
notwithstanding, this Agreement may be terminated at any time prior to the
Closing Date:


	
  

 	
  

 
	
  

 	
                     (a)          by
 either Seller or Buyer:

 





	
  

 	
  

 
	
  

 	
                     (i)          if
 a Governmental Authority issues a final, non-appealable ruling or Order
 prohibiting the transactions contemplated hereby;

 
	
  

 	
  

 
	
  

 	
                     (ii)         by
 mutual written consent of Seller and Buyer; 

 
	
  

 	
  

 
	
  

 	
                     (iii)        if
 the Parties fail to timely agree on the protocols and procedures required by Section
 8.6(b) to implement the actions contemplated by Schedules 8.6(a) and
 (b);

 
	
  

 	
  

 
	
  

 	
                     (iv)        by
 written notice to the other Party following the Closing Deadline if the
 Closing shall not have occurred on or before the Closing Deadline through no
 fault of (i) Buyer, in the case of notice from Buyer, or (ii) Seller, in the
 case of notice from Seller; provided, however, that any such
 termination notice by either Party shall be subject to the cure rights set
 forth in Article 9 or Article 10, as applicable;

 
	
  

 	
  

 
	
  

 	
                     (v)         by
 giving written notice at any time in the event that, on or after the
 Effective Date (but prior to the Closing Date), either house of the United
 States Congress votes to reject that certain federal tax program commonly
 known as the “Biodiesel Credit” or “Blender’s Credit” or if any bill
 containing such credit is vetoed by the United States President and such veto
 is not overridden by Congress with the result that the bill is not enacted
 into law

 





	
  

 	
  

 
	
  

 	
                     (b)          by
 Buyer giving timely written notice to Seller on the date thirty (30) days
 after the Effective Date (the “Due Diligence Expiration Date”) if
 Buyer is not satisfied in its sole discretion with the results of its due
 diligence regarding the Acquired Assets pursuant to Section 7.4(a), provided
 that if Buyer does not give such notice to Seller on or before the Due Diligence
 Expiration Date, Buyer will be deemed to have waived its right to terminate
 this Agreement pursuant to this Section 12.1(b);

 
	
  

 	
  

 
	
  

 	
                     (c)          by
 Buyer giving timely written notice to Seller on or before the Unitholder
 Approval Deadline if the Buyer Unitholder Approval shall not have been
 obtained pursuant to Section 7.5(f), provided that if Buyer
 does not give such notice to Seller on or before such Unitholder Approval
 Deadline, Buyer will be deemed to have waived its right to terminate this
 Agreement pursuant to this Section 12.1(c);

 
	
  

 	
  

 
	
  

 	
                     (d)          by
 Buyer giving timely written notice in the event of any breach by Seller of
 any of Seller’s agreements, covenants, representations or warranties
 contained herein (provided such breach would result in the
 failure of a condition set forth in Section 9.1, Section 9.2 or
 Section 9.3 to be satisfied) and the failure of Seller to cure such
 breach within fourteen (14) days after delivery of written notice from Buyer
 specifying particularly such breach; provided, that such breach is capable of
 being cured and Seller, in its sole discretion, elects to cure such breach;
 and provided
 further, however, that in the event that any
 breach shall have been cured before the expiration of the fourteen (14) day
 cure-period, at the election of Buyer the Closing Date shall be extended by
 the number of days actually elapsed before the cure of such breach; 

 



 29









	
  

 	
  

 
	
  

 	
                     (e)          by
 Buyer giving timely written notice in the event that a condition set forth in
 Sections 9.4 – 9.13 has not been satisfied, unless such condition has
 been waived, and the failure of Seller to cure such unsatisfied condition
 within twenty (20) days after delivery of written notice from Buyer specifying
 particularly such condition; provided, that such unsatisfied
 condition is capable of being cured and Seller, in its sole discretion,
 elects to cure such condition in accordance with Section 9.14; and provided
 further, however, that in the event that any such
 unsatisfied condition shall have been cured before the expiration of the
 twenty (20) day cure-period, at the election of Buyer the Closing Date shall
 be extended by the number of days actually elapsed before the cure of such
 condition;

 
	
  

 	
  

 
	
  

 	
                     (f)          by
 Seller in the event of any breach by Buyer of any of Buyer’s agreements,
 covenants, representations or warranties contained herein (provided
 such breach would result in the failure of a condition set forth in Section
 10.1, Section 10.2 or Section 10.3 to be satisfied) and the
 failure of Buyer to cure such breach within fourteen (14) days after delivery
 of notice from Seller specifying particularly such breach; provided,
 that such breach is capable of being cured and Buyer, in its sole discretion,
 elects to cure such breach; and provided further, however, that in the event
 that any breach shall have been cured before the expiration of the fourteen
 (14) day cure-period, at the election of Seller the Closing Date shall be
 extended by the number of days actually elapsed before the cure of such
 breach;

 
	
  

 	
  

 
	
  

 	
                     (g)          by
 Seller giving written notice at any time after expiration of the Unitholder
 Approval Deadline, pursuant to Section 7.5(f), if the Buyer does not
 provide written notification to Seller that the Buyer Unitholder Approval has
 been obtained by such applicable deadline in accordance with Section 7.5;

 
	
  

 	
  

 
	
  

 	
                     (h)          by
 Seller giving written notice at any time after the Expiration Date, if
 either (a) the Buyer does not provide written notification to Seller by the
 Expiration Date that the Buyer Unitholder Approval has been obtained before
 expiration of the Unitholder Approval Deadline under Section 7.5(f),
 and/or (b) the failure of Buyer to make the Deposit as required by Section
 2.7 on or before the Expiration Date; 

 
	
  

 	
  

 
	
  

 	
                     (i)          by
 Seller giving written notice in the event that Seller elects to terminate the
 Agreement in accordance with Section 9.5 after receiving any
 Objections from Buyer, provided that Buyer has not made a
 timely waiver of its Objections pursuant to Section 9.5; and

 
	
  

 	
  

 
	
  

 	
                     (j)          by
 Seller giving timely written notice in the event that a condition precedent
 set forth in Sections 10.4 – 10.9 has not been satisfied, unless such
 condition has been waived, and the failure of Seller to cure such condition
 within twenty (20) days after delivery of written notice from Buyer
 specifying particularly such condition; provided, that such condition is capable
 of being cured and Buyer, in its sole discretion, elects to cure such
 condition in accordance with Section 10.10; and provided further, however,
 that in the event that any breach shall have been cured before the expiration
 of the twenty (20) day cure-period, at the election of Seller the Closing
 Date shall be extended by the number of days actually elapsed before the cure
 of such breach.

 


30





                    12.2     Effect
of Termination. In the event of termination of this Agreement by Buyer or
Seller pursuant to this Article 12, except as otherwise provided in
this Section 12.2 or Section 12.3, all rights and obligations of
the Parties under this Agreement shall terminate without any liability of any
Party to any other Party; provided, however, that nothing herein
shall relieve any Party from liability for breach of this Agreement prior to
such termination or limit the rights and remedies of either Party at law or in
equity. The provisions of this Section 12.2 and Section 2.7 and,
to the extent applicable, Articles 1, 11 and 13, shall expressly
survive the expiration or termination of this Agreement. The termination or
expiration of this Agreement shall have no affect on the Deposit Escrow
Agreement, and following such expiration or termination of this Agreement, the
Deposit shall be distributed to Seller in accordance with the provisions of the
Deposit Escrow Agreement regardless of the reason for such termination or
expiration and regardless of the party that exercise its termination rights
hereunder. 


                    12.3     Expenses
in the Event of Termination. Without limiting the general provisions of Section
12.2, if this Agreement is terminated by Buyer or Seller pursuant to this Article 12,
then each Party shall be responsible for all of its own costs and expenses,
including any professional fees, incurred in connection with this Agreement or
the transactions herein contemplated.


                    12.4     Rights
and Remedies. Unless otherwise provided herein, any and all rights and
remedies conferred in this Agreement upon a Party will be deemed cumulative
with and not exclusive of any other right or remedy conferred hereby or by law
or equity upon such Party, and the exercise by a Party of any one remedy will
not preclude the exercise of any other right or remedy. Without limiting the
generality of the foregoing sentence, the Parties also acknowledge and agree as
follows. A Party’s exercise of any rights provided herein to terminate this
Agreement shall not constitute an election of remedies that will preclude it
from exercising any and all other rights and remedies provided hereby or by law
or equity. Irreparable harm for which monetary damages would not be an adequate
remedy would occur in the event of any breach of this Agreement, and
accordingly, in addition to any other rights and remedies to which the Parties
are entitled, each Party shall be entitled seek injunctive relief to prevent a
breach of this Agreement and to specifically enforce the terms hereof. To the
extent the terms of Article 11 are contrary to this Section 12.4, Article 11 shall be controlling. 


ARTICLE 13

GENERAL PROVISIONS


                    13.1     Survival.
Except as provided in this Section 13.1, all representations and
warranties contained herein or in any certificated deliveries hereunder, and
all covenants and agreements contained herein, shall survive the execution and
delivery of this Agreement and the consummation of the transactions
contemplated hereby until the second annual anniversary of the Closing Date, except that
the representations, warranties, covenants and agreements made in Section 8.6
shall survive until the second annual anniversary after the date on which Buyer
has completed the Work as certified pursuant to Section 8.6(h). Any
claim by any Party for any breach of any representation or warranty provided
herein, or of any covenants or agreements contained herein, or for any other
default under or breach of this Agreement, shall be brought on or before the
second annual anniversary of the Closing Date, or in the case of any claim
under Section 8.6, the second annual anniversary of the date on which
the Work required therein has been completed; provided, however, that this
Section 13.1 shall not be applicable to the Loan Documents or to any of
the obligations, rights or remedies provided in such Loan Documents.


                    13.2     Public
Announcements. Unless otherwise required by applicable Legal Requirement or
by obligations of Buyer or Seller or their respective Affiliates pursuant to
any listing agreement with or rules of any securities exchange, Buyer, on the
one hand, and Seller, on the other hand, shall consult with each other before
issuing any other press release or otherwise making any public statement with
respect to this Agreement, the transactions contemplated hereby or the
activities and operations of the other and shall not issue any such release or
make any such statement without the prior written consent of the other (such
consent not to be unreasonably withheld or delayed).


31





                    13.3     Notices.
All notices, consents, waivers and other communications under this Agreement
must be in writing and shall be deemed to have been duly given when (a)
delivered by hand (with written confirmation of receipt), (b) sent by facsimile
or electronic mail (with written confirmation of receipt), (c) received by the
addressee, if sent by a delivery service (prepaid, receipt requested) or (d)
received by the addressee, if sent by registered or certified mail (postage
prepaid, return receipt requested), in each case to the appropriate addresses,
representatives (if applicable) and facsimile numbers set forth below (or to
such other addresses, representatives and facsimile numbers as a Party may designate
by notice to the other Parties):


	
  

 	
  

 	
  

 	
  

 
	
  

 	
 (i)

 	
 If to
 Seller:

 	
  

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
 OSM—REO FF,
 LLC 

 
	
  

 	
  

 	
  

 	
 225 South
 Sixth Street, Suite 2800

 
	
  

 	
  

 	
  

 	
 Minneapolis,
 MN 55402

 
	
  

 	
  

 	
  

 	
 Attn: Steph
 Lunde 

 
	
  

 	
  

 	
  

 	
 Telephone:
 (612) 376-1486

 
	
  

 	
  

 	
  

 	
 Facsimile:
 (612) 692-5107

 
	
  

 	
  

 	
  

 	
 Email: Stephanie.Lunde@osm-mail.com

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
 with a copy
 (which shall not constitute notice) to:

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
 Leonard,
 Street and Deinard

 
	
  

 	
  

 	
  

 	
 150 South
 Fifth Street, Suite 2300

 
	
  

 	
  

 	
  

 	
 Minneapolis,
 MN 55402 

 
	
  

 	
  

 	
  

 	
 Attn:
 Timothy Ring, Esq.

 
	
  

 	
  

 	
  

 	
 Email:
 timothy.ring@leonard.com

 
	
  

 	
  

 	
  

 	
 Facsimile:
 (612)335-1657

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 (ii)

 	
 If to Buyer:

 	
  

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
 Soy Energy,
 LLC

 
	
  

 	
  

 	
  

 	
 Attn: Chuck
 Sand

 
	
  

 	
  

 	
  

 	
 4765 Highway
 143

 
	
  

 	
  

 	
  

 	
 P.O. Box 648

 
	
  

 	
  

 	
  

 	
 Marcus, Iowa
 50135

 
	
  

 	
  

 	
  

 	
 Telephone:
 (712) 376-4135

 
	
  

 	
  

 	
  

 	
 Email:
 csand@sandsofiowa.com

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
 AND

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
 Soy Energy,
 LLC

 
	
  

 	
  

 	
  

 	
 Attn: Rick
 Davis

 
	
  

 	
  

 	
  

 	
 4832 G
 Avenue

 
	
  

 	
  

 	
  

 	
 P.O. Box 663

 
	
  

 	
  

 	
  

 	
 Marcus, Iowa
 50135

 
	
  

 	
  

 	
  

 	
 Telephone:
 (712) 376-2081

 
	
  

 	
  

 	
  

 	
 Email:
 rdavis@midlands.net

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
 with a copy
 (which shall not constitute notice) to:

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
 BrownWinick

 
	
  

 	
  

 	
  

 	
 666 Grand
 Avenue, Suite 2000

 
	
  

 	
  

 	
  

 	
 Des Moines,
 IA 50309

 
	
  

 	
  

 	
  

 	
 Attn: Thomas
 Johnson, Esq.

 
	
  

 	
  

 	
  

 	
 Email:
 johnson@brownwinick.com

 
	
  

 	
  

 	
  

 	
 Facsimile:
 (515) 323-8514

 


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                    13.4     Waiver.
Neither the failure nor any delay by any Party in exercising any right, power,
or privilege under this Agreement or the documents referred to in this
Agreement shall operate as a waiver of such right, power or privilege, and no
single or partial exercise of any such right, power, or privilege shall
preclude any other or further exercise of such right, power, or privilege or
the exercise of any other right, power, or privilege. To the maximum extent
permitted by applicable law, (a) no waiver that may be given by a Party
shall be applicable except in the specific instance for which it is given, and
(b) no notice to or demand on one Party shall be deemed to be a waiver of
any right of the Party giving such notice or demand to take further action
without notice or demand.


                    13.5     Entire
Agreement; Amendment. This Agreement (including the Schedules and the
Exhibits) and the other Transaction Documents supersede all prior agreements
between Buyer, on the one hand, and Seller, on the other hand, with respect to
its subject matter and constitute a complete and exclusive statement of the
terms of the agreements between Buyer, on the one hand, and Seller, on the
other hand, with respect to their subject matter. This Agreement may not be
amended except by a written agreement executed by all of the Parties.


                    13.6     Assignment.
This Agreement, and the rights, interests and obligations hereunder, shall not
be assigned by any Party by operation of law or otherwise without the express
written consent of the other Parties (which consent may be granted or withheld
in the sole discretion of such other Party).


                    13.7     Severability.
The provisions of this Agreement shall be deemed severable, and the invalidity
or unenforceability of any provision shall not affect the validity or
enforceability of the other provisions hereof. If any provision of this
Agreement, or the application thereof to any Person or any circumstance, is
invalid or unenforceable, (a) a suitable and equitable provision shall be
substituted therefor in order to carry out, so far as may be valid and
enforceable, the intent and purpose of such invalid or unenforceable provision
and (b) the remainder of this Agreement and the application of such provision
to other Persons or circumstances shall not be affected by such invalidity or
unenforceability.


                    13.8     Expenses.
Whether or not the transactions contemplated by this Agreement are consummated,
the Parties shall bear their own respective expenses (including all
compensation and expenses of counsel, financial advisors, consultants,
actuaries and independent accountants) incurred in connection with this
Agreement and the transactions contemplated hereby.


                    13.9     Governing
Law; Consent to Jurisdiction and Venue; Jury Trial Waiver.


	
  

 	
  

 
	
  

 	
                         (a)          This
 Agreement shall be governed by, and construed in accordance with, the laws of
 the State of Minnesota applicable to contracts made and to be performed
 entirely in such state without regard to principles of conflicts or choice of
 laws or any other law that would make the laws of any other jurisdiction
 other than the State of Minnesota applicable hereto.

 
	
  

 	
  

 
	
  

 	
                         (b)          All
 Actions and Proceedings arising out of or relating to this Agreement shall be
 heard and determined in a Minnesota state court or a federal court sitting in
 the state of State Minnesota, and the Parties hereby irrevocably submit to
 the exclusive jurisdiction and venue of such courts in any such Action or
 Proceeding and irrevocably waive the defense of an inconvenient forum to the
 maintenance of any such Action or Proceeding. The Parties consent to service
 of process by mail (in accordance with Section 13.3) or any other
 manner permitted by law.

 


33









	
  

 	
  

 
	
  

 	
                         (c)          THE
 PARTIES HEREBY IRREVOCABLY WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
 PROCEEDING OR COUNTERCLAIM (WHETHER BASED IN CONTRACT, TORT OR OTHERWISE)
 ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF SELLER OR
 BUYER OR THEIR RESPECTIVE REPRESENTATIVES IN THE NEGOTIATION OR PERFORMANCE
 HEREOF.

 


                    13.10     Counterparts.
This Agreement and any amendment hereto may be executed in one or more
counterparts, each of which shall be deemed to be an original of this Agreement
or such amendment and all of which, when taken together, shall be deemed to
constitute one and the same instrument. Notwithstanding anything herein to the
contrary, delivery of an executed counterpart of a signature page to this
Agreement or any amendment hereto by telecopier, facsimile or email attachment
shall be effective as delivery of a manually executed counterpart of this
Agreement or such amendment, as applicable.


                    13.11     Parties
in Interest; No Third Party Beneficiaries. This Agreement shall inure to
the benefit of and be binding upon the Parties and their respective successors
and permitted assigns. This Agreement is for the sole benefit of the Parties
and their permitted assigns, and nothing herein, express or implied, is
intended to or shall confer upon any other Person any legal or equitable
benefit, claim, cause of action, remedy or right of any kind.


                    13.12     Non-Recourse.
No past, present or future director, officer, employee, incorporator, member,
partner or equity holder of Seller shall have any liability for any obligations
or liabilities of Seller under this Agreement or any other Transaction
Document, for any claim based on, in respect of, or by reason of the
transactions contemplated hereby and thereby, and no past, present or future
director, officer, employee, incorporator, member, partner or equity holder of
Buyer shall have any liability for any obligations or liabilities of Buyer
under this Agreement or any other Transaction Document, for any claim based on,
in respect of, or by reason of the transactions contemplated hereby and
thereby.


[Signature pages follow]


34





          IN
WITNESS WHEREOF, the Parties have caused this
Agreement to be executed and delivered by their duly authorized
representatives, all as of the Effective Date.



	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
 OSM-REO FF, LLC

 	
  

 
	
  

 
	
  

 	
 By: 

 	
 /s/ Stephanie
 Lunde

 	
  

 
	
  

 	
  

 	

 


 	
  

 
	
  

 	
 Name: Stephanie
 Lunde

 	
  

 
	
  

 	

 


 	
  

 
	
  

 	
 Its: Vice
 President

 	
  

 
	
  

 	

 


 	
  

 







	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
 SOY ENERGY, LLC

 	
  

 
	
  

 
	
  

 	
 By: 

 	
 /s/ Charles
 Sand

 	
  

 
	
  

 	
  

 	

 


 	
  

 
	
  

 	
 Name: Charles Sand

 	
  

 
	
  

 	

 


 	
  

 
	
  

 	
 Title: Chairman

 	
  

 
	
  

 	

 


 	
  

 


35