Exhibit
10.2


 


EXECUTION VERSION


 


LLC INTEREST PURCHASE AGREEMENT


 


This LLC Interest Purchase Agreement (“Agreement”)
is made as of November 20, 2009, by Illinois Corn Processing
Holdings LLC, a Delaware limited liability company (“Buyer”),
and MGP Ingredients, Inc., a Kansas
corporation (“Seller”).


 


RECITALS


 


Seller desires to sell, and Buyer desires to
purchase, 50% (the “Purchased Interest”) of the issued and outstanding
limited liability company interest of Illinois Corn Processing, LLC, a Delaware
limited liability company (the “Company”), for the consideration and on
the terms set forth in this Agreement.


 


AGREEMENT


 


The parties, intending to be legally bound,
agree as follows:


 


1.                                       DEFINITIONS


 


For purposes of this Agreement, the following
terms have the meanings specified or referred to in this Section 1:


 


“Additional
Capital Investment”—all additional equity
capital contributions and total capital expenditures made by each of Buyer and
Seller pursuant to the LLC Agreement.


 


“Applicable Contract”—any Contract (a) under
which the Company has or may acquire any rights, (b) under which the
Company has or may become subject to any obligation or liability, or (c) by
which the Company or any of the assets owned or used by it is or may become
bound.


 


“Breach”—a “Breach” of a
representation, warranty, covenant, obligation, or other provision of this
Agreement or any instrument delivered pursuant to this Agreement will be deemed
to have occurred if there is or has been (a) any inaccuracy in or breach
of, or any failure to perform or comply with, such representation, warranty,
covenant, obligation, or other provision, or (b) any claim (by any Person)
or other occurrence or circumstance that is or was inconsistent with such
representation, warranty, covenant, obligation, or other provision, and the
term “Breach” means any such inaccuracy, breach, failure, claim, occurrence, or
circumstance.


 


“Business” —the business operations, activities,
Plant assets and practices associated with the production of fuel ethanol, food
grade and industrial grade alcohol and associated by-products at the Plant.


 


“Buyer”—as defined in the first
paragraph of this Agreement.


 


“Buyer Indemnified Persons” —as
defined in Section 10.2.


 

















 


“Cleanup” — any environmental
investigation, cleanup, removal, response, remedial action, corrective action,
containment, monitoring, sampling, testing or other remediation or response
actions, including related consulting activities.  The terms “removal,” “remedial,” and “response
action,” include the types of activities covered by the United States
Comprehensive Environmental Response, Compensation, and Liability Act, 42
U.S.C. Section 9601 et seq. (“CERCLA”), the Resource Conservation
and Recovery Act, 42 U.S.C. Section 6973 et seq. (“RCRA”), or
applicable and analogous state statutes, as each has been amended.


 


“Closing” —the consummation of the
transactions contemplated by this Agreement, as provided in Section 2.3.


 


“Closing Date”—the date of this
Agreement, or such other date as may be agreed by the parties.


 


“Company”—as defined in the Recitals
of this Agreement.


 


“Consent”—any approval, consent,
ratification, waiver, or other authorization (including any Governmental
Authorization).


 


“Contemplated Transactions”—all of the
transactions contemplated by this Agreement, including:


 


(a)                                  the sale of the
Purchased Interest by Seller to Buyer;


 


(b)                                 the execution
and delivery at Closing of the LLC Agreement, the Ethanol Off-Take Agreement,
the Food Grade Alcohol Off-Take Agreement and the Loan Documents;


 


(c)                                  the performance
by Buyer and Seller of their respective covenants and obligations under this
Agreement; and


 


(d)                                 Buyer’s
acquisition and ownership of the Purchased Interest.


 


“Contract”—any agreement, contract,
obligation, promise, or undertaking (whether written or oral and whether
express or implied) that is legally binding.


 


“Contribution” —the contribution of
assets made by the Seller to the Company pursuant to the Contribution
Agreement.


 


“Contribution Agreement” —that certain
Contribution Agreement dated this date between Seller and the Company whereby
Seller contributed the Plant and related assets to the Company immediately
prior to the Closing under this Agreement.


 


“Damages”—as defined in Section 10.2.


 


“Disclosure Letter”—the disclosure
letter delivered by Seller to Buyer concurrently with the execution and
delivery of this Agreement.


 


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“Encumbrance”—any charge, claim,
community property interest, condition, equitable interest, lien, option,
pledge, security interest, right of first refusal, security interest, mortgage,
indenture, deed of trust, easement, assessment, lease, agreement, license,
covenant, levy, or other encumbrance or restriction of any kind, or any
conditional sale agreement, title retention agreement or other agreement to
give any of the foregoing, including any restriction on use, voting, transfer,
receipt of income, or exercise of any other attribute of ownership.


 


“Environment”—soil, land surface or
subsurface strata, surface waters (including navigable waters, ocean waters,
streams, ponds, drainage basins, and wetlands), groundwaters, drinking water
supply, stream sediments, ambient air (including indoor air), plant and animal
life, and any other environmental medium or natural resource.


 


“Environmental, Health, and Safety
Liabilities”—any costs, damages, expenses, liabilities, obligations, fines,
penalties, judgments, awards, settlements, claims, demands, in or other
responsibility arising from or under Environmental Law or Occupational Safety
and Health Law and consisting of or relating to:


 


(a)                                  any
environmental, health, or safety matters or conditions (including on-site or
off-site contamination, occupational safety and health, and regulation of
chemical substances or products);


 


(b)                                 legal or
administrative proceedings under Environmental Law or Occupational Safety and
Health Law;


 


(c)                                  any Cleanup;


 


(d)                                 financial
responsibilities under any Environmental Law or Occupational Safety and Health
Law;


 


(e)                                  any natural
resource damages; or


 


(f)                                    any other
compliance, corrective, investigative, or remedial measures required under
Environmental Law or Occupational Safety and Health Law.


 


“Environmental Law”—any Legal
Requirement that requires or relates to:


 


(a)                                  advising
appropriate authorities, employees, and the public of intended or actual
releases of pollutants or hazardous substances or materials, violations of
discharge limits, or other prohibitions and of the commencements of activities,
such as resource extraction or construction, that could have significant impact
on the Environment;


 


(b)                                 preventing or
reducing to acceptable levels the release of pollutants or hazardous substances
or materials into the Environment;


 


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(c)                                  reducing the quantities,
preventing the release, or minimizing the hazardous characteristics of wastes
that are generated;


 


(d)                                 assuring that
products are designed, formulated, packaged, and used so that they do not
present unreasonable risks to human health or the Environment when used or
disposed of;


 


(e)                                  protecting
resources, species, or ecological amenities;


 


(f)                                    reducing to
acceptable levels the risks inherent in the transportation of hazardous
substances, pollutants, oil, or other potentially harmful substances;


 


(g)                                 cleaning up
pollutants that have been released, preventing the threat of release, or paying
the costs of such clean up or prevention;


 


(h)                                 making
responsible parties pay private parties, or groups of them, for damages done to
their health or the Environment, or permitting self-appointed representatives
of the public interest to recover for injuries done to public assets; or


 


(i)                                     any legal
requirements related to CERCLA, RCRA or applicable and analogous state
statutes.


 


“ERISA”—the Employee Retirement Income
Security Act of 1974 or any successor law, and regulations and rules issued
pursuant to that Act or any successor law.


 


“Ethanol Off-Take Agreement”—that
certain Marketing Agreement dated the Closing Date between the Company and
SEACOR Energy Inc., an affiliate of Buyer, with respect to ethanol produced at
the Plant.


 


“Excluded Equipment”—the equipment
located in the wheat starch and wheat protein plant that is part of the
facilities at the Plant, which shall remain the sole property of MGPI.


 


“Food Grade Alcohol Off-Take Agreement”—that
certain Marketing Agreement dated the Closing Date between the Company and
Seller with respect to food-grade and industrial-grade alcohol produced at the
Plant.


 


“Governmental Authorization”—any
approval, consent, license, permit, waiver, or other authorization issued,
granted, given, or otherwise made available by or under the authority of any
Governmental Body or pursuant to any Legal Requirement.


 


“Governmental Body”—any:


 


(a)                                  nation, state,
county, city, town, village, district, or other jurisdiction of any nature;


 


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(b)                                 federal, state,
local, municipal, foreign, or other government;


 


(c)                                  governmental or
quasi-governmental authority of any nature (including any governmental agency,
branch, department, official, or entity and any court or other tribunal);


 


(d)                                 multi-national
organization or body; or


 


(e)                                  body
exercising, or entitled to exercise, any administrative, executive, judicial,
legislative, police, regulatory, or taxing authority or power of any nature.


 


“Hazardous Activity”—the distribution,
generation, handling, importing, management, manufacturing, processing,
production, refinement, Release, storage, transfer, transportation, treatment,
or use (including any withdrawal or other use of groundwater) of Hazardous
Materials in, on, under, about, or from the Plant or any part thereof into the
Environment, and any other act, business, operation, or thing that increases
the danger, or risk of danger, or poses a risk of harm to persons or property
on or off the Plant, or that may affect the value of the Plant or the Company.


 


“Hazardous Materials”—any waste or
other substance that is listed, defined, designated, or classified as, or
otherwise determined to be, hazardous, radioactive, or toxic or a pollutant or
a contaminant under or pursuant to any Environmental Law, including any
admixture or solution thereof, and specifically including petroleum and all
derivatives thereof or synthetic substitutes therefor, and asbestos or
asbestos-containing materials.


 


“Indemnified Party”—as defined in Section 10.8(a).


 


“Indemnifying Party”—as defined in Section 10.8(a).


 


“Intellectual
Property” —all intellectual property, including all:


 


(a)                                  patents,
applications for patents, and rights to apply for patents in any part of the
world;


 


(b)                                 copyrights,
design rights, topography rights, Internet domain name registrations, and
database rights whether registered or unregistered;


 


(c)                                  trademark and
service mark applications, registered trademarks and service marks, registered
designations of origin, registered designations of geographic origin,
refilings, renewals and reissues of the foregoing, unregistered trademarks and
service marks, including common law trademarks and service marks, rights to
trade dress and company names, in each case with any and all associated
goodwill; and


 


(d)                                 all rights in
respect of any Know How.


 


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“IRC”—the Internal Revenue Code of
1986 or any successor law, and regulations issued by the IRS pursuant to the
Internal Revenue Code or any successor law.


 


“IRS”—the United States Internal
Revenue Service or any successor agency, and, to the extent relevant, the
United States Department of the Treasury.


 


“Knowledge”—an individual will be
deemed to have “Knowledge” of a particular fact or other matter if such
individual is actually aware of such fact or other matter.  A Person (other than an individual) will be
deemed to have “Knowledge” of a particular fact or other matter if any
individual who is serving as the President, Chief Financial Officer or Chief
Operating Officer of such Person (or in any similar capacity) has, or at any
time had, Knowledge of such fact or other matter.


 


“Know How” —trade secrets and
confidential business information including details of supply arrangements,
customer lists and pricing policy; sales targets, sales statistics, market
share statistics, marketing surveys and reports; unpatented technical and other
information that is not publicly available including inventions, discoveries,
processes and procedures, ideas, concepts, formulae, notebooks, specifications,
procedures for experiments and tests and results of experimentation and
testing; information comprised in software and materials; together with all
common law or statutory rights protecting the same and any similar or analogous
rights to any of the foregoing whether arising or granted under any Laws.


 


“Known Environmental Condition”—any
Hazardous Activity or Release of Hazardous Materials actually or constructively
known by any current or former officer, director, employee or agent of Seller
at the time of Closing, or referenced in any documents maintained by or
provided to Seller or any Governmental Body, including, but not limited to
those documents posted in the electronic data room created in connection with
the transaction contemplated by this Agreement and the Enercon Phase I and II
Environmental Site Assessments, each dated November 18, 2009.


 


“Law” —any statute, law, ordinance,
decree, order, injunction, rule, directive, or regulation of any Governmental
Body or quasi-governmental authority, and includes rules and regulations
of any regulatory or self-regulatory authority compliance with which is
required by any of the foregoing.


 


“Legal Requirement”—any federal,
state, local, municipal, foreign, international, multinational, or other
administrative order, constitution, law, ordinance, principle of common law,
regulation, statute, or treaty.


 


“LLC Agreement”—that certain Limited
Liability Company Agreement of the Company dated the Closing Date between Buyer
and Seller.


 


“Loan Agreements” — collectively, (i) the
Term Loan Agreement and (ii) until refinancing with a third party, the
Revolving Loan Agreement.


 


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“Loan Documents”— the Loan Agreements
and each note, mortgage, security agreement, instrument, agreement and
certificate delivered to the lender pursuant to the Loan Agreements.


 


“Occupational Safety and Health Law”—any
Legal Requirement designed to provide safe and healthful working conditions and
to reduce occupational safety and health hazards, and any program, whether
governmental or private (including those promulgated or sponsored by industry
associations and insurance companies), designed to provide safe and healthful
working conditions.


 


“Order”—any award, decision,
injunction, judgment, order, ruling, subpoena, or verdict entered, issued,
made, or rendered by any court, administrative agency, or other Governmental
Body or by any arbitrator.


 


“Organizational Documents”—(a) the
articles or certificate of formation and the limited liability company
agreement or operating agreement of a limited liability company; (b) the
articles or certificate of incorporation and the bylaws of a corporation; (c) the
partnership agreement and any statement of partnership of a general
partnership; (d) the limited partnership agreement and the certificate of
limited partnership of a limited partnership; (e) any charter or similar
document adopted or filed in connection with the creation, formation, or
organization of a Person; and (f) any amendment to any of the foregoing.


 


“Permitted Encumbrances”—(i) any
liens for current taxes and, to the extent set forth in Part 3.4(B) of
the Disclosure Letter, special assessments, if any, not yet due; (ii) existing
Encumbrances that are set forth in Part 3.4(B) of the Disclosure
Letter; (iii) minor imperfections of title, if any, none of which is
substantial in amount, materially detracts from the value or impairs the use of
the property subject thereto, or impairs the operations of the Company, and (iv) zoning
laws and other land use restrictions that do not impair the present use of the
property subject thereto.


 


“Person”—any individual, corporation
(including any non-profit corporation), general or limited partnership, limited
liability company, joint venture, estate, trust, association, organization,
labor union, or other entity or Governmental Body.


 


“Plant”— the alcohol production
facility acquired by the Company from Seller located at 1301 S. Front Street,
Pekin, Illinois 61554 (as more particularly described on the attached Exhibit A),
including all related real estate, improvements, equipment and other real and
personal property at such location, other than the Excluded Equipment.


 


“Proceeding”—any action, arbitration,
audit, hearing, investigation, litigation, or suit (whether civil, criminal,
administrative, investigative, or informal) commenced, brought, conducted, or
heard by or before, or otherwise involving, any Governmental Body or
arbitrator.


 


“Purchased Interest”—as defined in the
Recitals of this Agreement.


 


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“Reasonable Efforts”—the efforts that
a prudent Person desirous of achieving a result would use in similar
circumstances to ensure that such result is achieved as expeditiously as
possible; provided, however, that an obligation to
use Reasonable Efforts under this Agreement does not require the Person subject
to that obligation to take actions that would result in a materially adverse
change in the benefits to such Person of this Agreement and the Contemplated
Transactions.


 


“Related Person”—with respect to a
particular individual:


 


(a)                                  each other
member of such individual’s Family;


 


(b)                                 any Person that
is directly or indirectly controlled by such individual or one or more members
of such individual’s Family;


 


(c)                                  any Person in
which such individual or members of such individual’s Family hold (individually
or in the aggregate) a Material Interest; and


 


(d)                                 any Person with
respect to which such individual or one or more members of such individual’s
Family serves as a director, officer, partner, executor, or trustee (or in a
similar capacity).


 


With respect to a specified Person other than
an individual:


 


(e)                                  any Person that
directly or indirectly controls, is directly or indirectly controlled by, or is
directly or indirectly under common control with such specified Person;


 


(f)                                    any Person that
holds a Material Interest in such specified Person;


 


(g)                                 each Person
that serves as a director, officer, partner, executor, or trustee of such
specified Person (or in a similar capacity);


 


(h)                                 any Person in
which such specified Person holds a Material Interest;


 


(i)                                     any Person with
respect to which such specified Person serves as a general partner or a trustee
(or in a similar capacity); and


 


(j)                                     any Related
Person of any individual described in clause (b) or (c).


 


For purposes of this definition, (a) the
“Family” of an individual includes (i) the individual, (ii) the
individual’s spouse, (iii) any other natural person who is related to the
individual or the individual’s spouse within the second degree, and (iv) any
other natural person who resides with such individual, and (b) “Material
Interest” means direct or indirect beneficial ownership (as defined in Rule 13d-3
under the Securities Exchange Act of 1934, as amended) of voting securities or
other voting interests representing at least 10% of the outstanding voting
power of a Person or equity securities or other equity 


 


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interests representing at
least 10% of the outstanding equity securities or equity interests in a Person.


 


“Release”—any spilling, leaking,
emitting, discharging, depositing, escaping, leaching, dumping, or other
releasing into the Environment, whether intentional or unintentional.


 


“Representative”—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.


 


“Revolving Loan Agreement”—that
certain Revolving Loan and Security Agreement dated the Closing Date between
SEACOR Capital Corporation (an affiliate of Buyer), as lender, and the Company,
as borrower, whereby SEACOR Capital Corporation is providing up to $20 million
in revolving credit facility financing secured by substantially all of the
Company’s assets.


 


“Securities Act”—the Securities Act of
1933 or any successor law, and regulations and rules issued pursuant to
that Act or any successor law.


 


“Seller”—as defined in the first
paragraph of this Agreement.


 


“Subsidiary”—with respect to any
Person (the “Owner”), any corporation or other Person of which
securities or other interests having the power to elect a majority of that
corporation’s or other Person’s board of directors or similar governing body,
or otherwise having the power to direct the business and policies of that
corporation or other Person (other than securities or other interests having
such power only upon the happening of a contingency that has not occurred) are
held by the Owner or one or more of its Subsidiaries.


 


“Tax” or “Taxes” —(i) any
and all federal, state, provincial, local, municipal and foreign taxes,
assessments and other governmental charges, duties, impositions and liabilities
of any kind, including taxes or other charges based upon or measured by gross
receipts, income, profits, sales, capital, use and occupation, admission,
entertainment and value added, goods and services, ad valorem, transfer,
franchise, withholding, payroll, recapture, employment, personal property,
excise, duty, customs, Pension Benefit Guaranty Corporation premiums and real
estate taxes, together, in each case, with all interest, penalties and
additions imposed with respect to such amounts; (ii) any liability for the
payment of any amounts of the type described in clause (i) as a result of
being a member of an affiliated, consolidated, combined or unitary group for
any period; and (iii) any liability for the payments of the amounts of the
types described in clause (i) or (ii) as a result of being a
transferee of, or a successor in interest to, any Person or as a result of an
express or implied obligation to indemnify any Person (other than an
indemnification obligation arising under this Agreement).


 


“Tax Return”—any return (including any
information return), report, statement, schedule, notice, form, or other
document or information filed with or submitted to, or required to be filed
with or submitted to, any Governmental Body in connection with the 


 


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determination, assessment,
collection, or payment of any Tax, including Taxes payable by, pursuant to or
in connection with employee benefit plans or in connection with the
administration, implementation, or enforcement of or compliance with any Legal
Requirement relating to any Tax.


 


“Term Loan Agreement”—that certain
Term Loan and Security Agreement dated the Closing Date between SEACOR Capital
Corporation, as lender, and the Company, as borrower, whereby SEACOR Capital
Corporation is providing $10 million in term loan financing secured by
substantially all of the Company’s assets.


 


“Threat of Release”—a substantial
likelihood of a Release that may require action in order to prevent or mitigate
damage to the Environment that may result from such Release.


 


“Third Person”—as defined in Section 10.8(b).


 


“Third Person Claim”—as defined in Section 10.8(b).


 


“Threatened”—a claim, Proceeding,
dispute, action, or other matter will be deemed to have been “Threatened” if
any demand or statement has been made (orally or in writing) or any notice has
been given (orally or in writing), or if any other event has occurred or any
other circumstances exist, that would lead a prudent Person to conclude that
such a claim, Proceeding, dispute, action, or other matter is likely to be
asserted, commenced, taken, or otherwise pursued in the future.


 


“Transaction Taxes”—as defined in Section 2.4(d).


 


“Unknown Environmental Condition” —any
Hazardous Activity or Release of Hazardous Materials which is not a Known
Environmental Condition and which originated (in whole or in part) at any time
prior to Closing.


 


2.                                       SALE AND TRANSFER OF PURCHASED UNITS; CLOSING


 


2.1.                              PURCHASED UNITS


 


Subject to the terms and conditions of this
Agreement, at the Closing, Seller will sell, assign, convey and transfer the
Purchased Interest to Buyer, and Buyer will purchase, acquire, and accept from
Seller all of Seller’s right, title and interest in and to the Purchased
Interest.


 


2.2.                              PURCHASE PRICE


 


The consideration that Buyer will pay to
Seller for the Purchased Interest will be Fifteen Million Dollars ($15,000,000)
(the “Purchase Price”), payable in immediately available funds at the
Closing.


 


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2.3.                              CLOSING


 


The Closing will take place at the offices of
the Company at 1301 S. Front Street, Pekin, Illinois 61554, at 10:00 a.m.
Central Time on the Closing Date. Subject to the provisions of Section 9,
failure to effectuate the Closing on the date and time and at the place
determined pursuant to this Section will not result in the termination of
this Agreement and will not relieve any party of any obligation under this
Agreement.


 


2.4.                              CLOSING OBLIGATIONS


 


At the Closing:


 


(a)                                  Seller will
deliver to Buyer:


 


(i)                                     an LLC Interest
Assignment transferring the Purchased Interest to Buyer, free and clear of all
Encumbrances;


 


(ii)                                  the LLC
Agreement, duly executed by Seller;


 


(iii)                               the Food Grade
Alcohol Off-Take Agreement, duly executed by Seller;


 


(iv)                              a certificate
executed by Seller representing and warranting to Buyer that each of Seller’s
representations and warranties in this Agreement was accurate in all respects
as of the date of this Agreement and is accurate in all respects as of the
Closing Date as if made on the Closing Date, and further certifying that,
except as may be set forth in Buyer’s closing certificate delivered pursuant to
Section 2.4(b)(v), Seller has no Knowledge of any Breach by Buyer of any
of its representations, warranties and covenants set forth in this Agreement as
of the Closing Date; and


 


(v)                                 such other
customary documents, instruments or certificates as shall be reasonably
required by Buyer.


 


(b)                                 Buyer will
deliver or cause its affiliates to deliver to Seller:


 


(i)                                     the Purchase Price
by wire transfer of immediately available funds;


 


(ii)                                  the LLC
Agreement, duly executed by Buyer;


 


(iii)                               the Ethanol
Off-Take Agreement, duly executed by SEACOR Energy Inc.;


 


(iv)                              the Loan
Documents, duly executed by SEACOR Capital Corporation;


 


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(v)                                 a certificate
executed by Buyer to the effect that, except as otherwise stated in such
certificate, each of Buyer’s representations and warranties in this Agreement
was accurate in all respects as of the date of this Agreement and is accurate
in all respects as of the Closing Date as if made on the Closing Date, and
further certifying that, except as may be set forth in Seller’s closing
certificate delivered pursuant to Section 2.4(a)(iv), Buyer has no
Knowledge of any Breach by Seller of any of its representations, warranties and
covenants set forth in this Agreement as of the Closing Date; and


 


(vi)                              such other
customary documents, instruments or certificates as shall be reasonably
required by Seller.


 


(c)                                  Seller will
cause the Company to deliver to Buyer and Seller, as applicable:


 


(i)                                     the Food Grade
Alcohol Off-Take Agreement, duly executed by the Company;


 


(ii)                                  the Ethanol
Off-Take Agreement, duly executed by the Company;


 


(iii)                               the Loan
Documents, duly executed by the Company; and


 


(iv)                              such other
customary documents, instruments or certificates as shall be reasonably
required by Buyer and Seller, as applicable.


 


(d)                                 Any sales, use,
transfer, documentary, registration, stamp, duties, gains, recording, and other
similar taxes (including related penalties (civil or criminal), additions to
tax and interest) imposed by any Governmental Body with respect to the
transactions contemplated by this Agreement (“Transaction Taxes”) shall
be the sole obligation of the Seller. 
Seller shall provide written notice to Buyer of the payment of and/or a
written response to Buyer upon any request for information regarding the status
of any Transaction Taxes.  Seller shall
be responsible for (i) administering the payment of such Transaction
Taxes, (ii) defending or pursuing any proceedings related thereto, and (iii) paying
any expenses related thereto.


 


2.5.                              PURCHASE OPTION


 


Between the second and fifth
anniversaries of the Closing Date, Buyer may give Seller written notice of its
election to purchase for cash additional Interests (as defined in the LLC
Agreement) from Seller up to an aggregate of 20% of all issued and outstanding
Interests.  The purchase price payable
for such Interests shall be the percentage of such Interests multiplied by the
greater of (i) four times the immediately proceeding twelve months EBITDA
of the Company or (ii) $40 million, adjusted for pro-rata Additional
Capital Investment.


 


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3.                                       REPRESENTATIONS AND WARRANTIES OF SELLER


 


Seller represents and warrants to Buyer as
follows:


 


3.1.                              ORGANIZATION AND GOOD STANDING


 


The Company is a limited liability company
duly organized, validly existing, and in good standing under the laws of
Delaware, with all requisite entity power and authority to conduct the
Business, to own or use the properties and assets that it purports to own or
use, and to perform all its obligations under Applicable Contracts. The Company
is duly qualified to do business as a foreign limited liability company and is
in good standing under the laws of Illinois, the only jurisdiction in which
either the ownership or use of the properties owned or used by it, or the
nature of the activities conducted by it, requires such qualification.


 


3.2.                              AUTHORITY; NO CONFLICT


 


(a)                                  This Agreement
constitutes the legal, valid, and binding obligation of Seller, enforceable
against Seller in accordance with its terms, subject to the application of any
laws relating to bankruptcy, insolvency or the rights of creditors generally.
Upon the execution and delivery by Seller of the documents required to be
executed and delivered by it in Section 2.4 (collectively, the “Seller
Closing Documents”), the Seller Closing Documents will constitute the
legal, valid, and binding obligations of Seller, enforceable against Seller in
accordance with their respective terms, subject to the application of any laws
relating to bankruptcy, insolvency or the rights of creditors generally. Seller
has the absolute and unrestricted right, power, authority, and capacity to
execute and deliver this Agreement and the Seller Closing Documents and to
perform its obligations under this Agreement and the Seller Closing Documents,
subject to the application of any laws relating to bankruptcy, insolvency or
the rights of creditors generally.


 


(b)                                 The Company has
the absolute and unrestricted right, power, authority, and capacity to execute
and deliver the documents required to be executed and delivered by it in Section 2.4
(collectively, the “Company Closing Documents”) and to perform its
obligations under the Company Closing Documents, subject to the application of
any laws relating to bankruptcy, insolvency or the rights of creditors
generally.


 


(c)                                  Except as set
forth in Part 3.2 of the Disclosure Letter, neither the execution and
delivery of this Agreement nor the consummation or performance of any of the
Contemplated Transactions will, directly or indirectly (with or without notice
or lapse of time):


 


(i)                                     contravene,
conflict with, or result in a violation of (A) any provision of the
Organizational Documents of the Company or Seller, or (B) any resolution
adopted by the member of the Company or the board of directors or shareholders
of Seller;


 


13

















 


(ii)                                  contravene,
conflict with, or result in a violation of, or give any Governmental Body or
other Person the right to challenge any of the Contemplated Transactions or to
exercise any remedy or obtain any relief under, any Legal Requirement or any
Order to which the Company or Seller, or any of the assets owned or used by the
Company, may be subject;


 


(iii)                               contravene,
conflict with, or result in a violation of any of the terms or requirements of,
or give any Governmental Body the right to revoke, withdraw, suspend, cancel,
terminate, or modify, any Governmental Authorization that is held by the
Company or that otherwise relates to the business of, or any of the assets
owned or used by, the Company;


 


(iv)                              contravene,
conflict with, or result in a violation or breach of any provision of, or give
any Person the right to declare a default or exercise any remedy under, or to
accelerate the maturity or performance of, or to cancel, terminate, or modify,
any Applicable Contract; or


 


(v)                                 result in the
imposition or creation of any Encumbrance upon or with respect to any of the
assets owned or used by the Company or the Purchased Interest.


 


(d)                                 Except as set
forth in Part 3.2 of the Disclosure Letter, neither Seller nor the Company
is or will be required to give any notice to or obtain any Consent from any
Person in connection with the execution and delivery of this Agreement or the
consummation or performance of any of the Contemplated Transactions.


 


3.3.                              CAPITALIZATION


 


Seller is and will be on the Closing Date the
record and beneficial sole owner and holder of the Purchased Interest, free and
clear of all Encumbrances. With the exception of the Purchased Interest and the
50% of limited liability company interest retained by Seller, there are no
other outstanding limited liability company interests issued and outstanding of
the Company.  Except for the Company’s
existing Limited Liability Company Agreement dated October 5, 2009 and the
Contribution Agreement, there are no Contracts relating to the issuance, sale,
or transfer of any equity securities or other securities of the Company.


 


3.4.                              TITLE TO PROPERTIES; ENCUMBRANCES


 


(a)                                  Part 3.4
of the Disclosure Letter contains a complete and accurate list of all material
real property, leaseholds, licenses or other interests therein owned by the
Company. Seller has delivered or made available to Buyer copies of the deeds
and other instruments (as recorded) by which the Company acquired such real
property and interests, and copies of all title insurance policies, opinions, abstracts,
and surveys in the possession of Seller or the Company and 


 


14

















 


relating
to such property or interests.  Except
with respect to Permitted Encumbrances, the Company is the sole and exclusive
owner of all right, title and interest in and to all of the real property
comprising the Plant.  Except with
respect to the steam boiler at the Plant or the Permitted Encumbrances, the
Company is the sole and exclusive owner of all right, title and interest in and
to or has the lawful right to use all of the personal and other property
(whether tangible or intangible) located at the Plant.  Except for any investment needed to acquire
inventory and other materials and parts necessary to restart the Plant, the
Plant contains all equipment necessary for the Company to conduct the
Business.  Except for Permitted
Encumbrances, all properties and assets of the Company are free and clear of
all Encumbrances and are not, in the case of real property, subject to any
leases, licenses, rights to acquire or occupy, covenants, agreements,
encumbrances, rights of way, building use restrictions, exceptions, variances,
reservations, limitations or other Encumbrances of any nature, recorded and, to the Knowledge of the Seller, unrecorded.  Except as set
forth in Part 3.4 of the Disclosure Letter, the Company does not lease (as the lessor), sublease or permit any third
party to occupy or use the Plant.


 


(b)                                 Except for “cap and trade” carbon emission legislation, to the Knowledge of
the Seller, there is no pending, proposed or Threatened change in any code,
ordinance, regulation, standard or zoning classification which would, or may
reasonably be expected to have, an material adverse effect on the Plant.


 


(c)                                  There is no pending or, to the Knowledge of the Seller, Threatened
condemnation proceeding against the Plant. 
To the Knowledge of the Seller, no part of any improvements on the Plant
encroaches upon any property adjacent thereto or upon any easement, nor is
there any encroachment or overlap upon the Plant other than Permitted
Encumbrances.


 


(d)                                 Except as set forth in Part 3.4 of the Disclosure Letter: (i) the Plant is not located within any flood
plain, flood area, wetlands or conservation area or subject to any similar type
of restriction for which any permits necessary to the use thereof by the
Company have not been obtained; (ii) to the Knowledge of the Seller,
neither the current use of the Plant nor the operations of the Company,
violates (A) any instrument of record, any Permitted Encumbrances, any
agreement of the Company, or any other agreement affecting the Plant or (B) any
applicable Legal Requirements; (iii) all utilities serving the Plant are
sufficient and have the capacity to conduct the Business; (iv) other than
commitments to pay property taxes, there are no development agreements or
similar agreements (oral or written) with or commitments to governmental
authorities, agencies, utilities or quasi-governmental entities with respect to
the Real Property or any portion thereof, including any agreement which imposes
an obligation upon the Company to make any contribution or dedication of money
or land or to construct, install or maintain any improvements of a public or
private nature on or off the Plant, or which requires the Company to maintain
certain employment levels at the Plant; (v) the Plant has reasonable
access to public roads and utilities; and (vi) to the Knowledge of the
Seller, the Plant and its continued use, 


 


15

















 


occupancy and operation as currently used, occupied and
operated, does not in any material respect constitute a nonconforming use under
any applicable building, zoning, subdivision and other land use and similar
laws, regulations and ordinances.


 


(e)                                  To the Knowledge of the Seller, there has been no cleanup performed at the
Plant that would entitle a third party to a lien for reimbursement of its
cleanup costs.


 


3.5.                              CONDITION AND SUFFICIENCY OF ASSETS


 


The buildings, plants, structures and
equipment of the Plant were structurally sound and in good operating condition
and repair at the time the Plant was shutdown in February 2009, ordinary
wear and tear excepted.  The buildings,
plants, structures and equipment of the Plant are structurally sound and in good
operating condition and repair in light of the current Plant shutdown.  The building, plants, structures and
equipment of the Company are sufficient for the conduct of the Business after
the Closing in the manner contemplated by the LLC Agreement.


 


3.6.                              TAXES


 


Except as set forth in Part 3.6 of the
Disclosure Letter:


 


(a)                                  The Company is
a newly-formed entity and has filed no tax returns.  The Seller has timely filed all Tax Returns
required to be filed by it with respect to the Business.  All such Tax Returns, as the same may have
been amended, are true, complete, and correct. 
The Seller is not currently the beneficiary of any extension of time
within which to file any Tax Return relating to the Business.


 


(b)                                 All Taxes
(whether or not reflected on any Tax Return) owed by the Seller with respect to
the Business have been timely and fully paid.


 


(c)                                  There are no
audits or examinations of any Tax Returns of the Seller relating to the
Business, pending or Threatened.  The
Seller is not a party to any action or proceeding by any Tax authority for the
assessment or collection of Taxes of the Business, nor has such event been
asserted or Threatened.


 


(d)                                 The Seller,
with respect to the Business, has timely and properly withheld and paid to the
proper Tax authorities all Taxes required to have been withheld and paid in
connection with amounts paid or owing to any employee, independent contractor,
creditor, stockholder, or other third party, including, but not limited to,
amounts required to be withheld under Sections 1441 and 1442 of the IRC (or
similar provisions of state, local or foreign Law).


 


(e)                                  The Seller,
with respect to the Business, has not waived any statutory period of
limitations for the assessment of any Taxes or agreed to any extension of time
with respect to a Tax assessment or deficiency other than in the 


 


16

















 


case
of any such waivers or extensions in respect of an assessment or deficiency of
Tax the liability of which has been satisfied or settled.


 


(f)                                    No claim has
been made by a Tax authority in a jurisdiction where the Seller, with respect
to the Business, does not file Tax Returns that the Business is or may be
subject to taxation by that jurisdiction.


 


(g)                                 None of the
assets of the Business (i) is required to be treated as being owned by any
other person pursuant to the so-called safe harbor lease provisions of former Section 168(f)(8) of
IRC, (ii) secure any debt the interest on which is tax-exempt under Section 103(a) of
the IRC, (iii) is tax-exempt use property within the meaning of Section 168(h) of
the IRC, or (iv) is leased pursuant to a section 467 rental agreement
within the meaning of Section 467 of the IRC.


 


(h)                                 The Seller,
with respect to the Business, has not agreed to or is required to make any
adjustment pursuant to Section 481(a) of the IRC by reason of a
change in accounting method initiated by the Business and the Seller, with
respect to the Business, has no knowledge that the IRS has proposed any such
adjustment or change in accounting method.


 


(i)                                     Neither the
Seller, with respect to the Business, nor the Company has any obligation under
any Tax indemnity, Tax allocation or sharing agreement or arrangement, and
after the Closing Date, neither the Seller, with respect to the Business, nor
the Company will be a party to, bound by or have any obligation under any Tax
allocation or Tax sharing agreement or arrangement, or have any liability
thereunder, for amounts due in respect of periods prior to and including the
Closing Date.


 


(j)                                     There are no
Liens related to Taxes on any of the assets of the Business, other than for
current Taxes not yet due and payable.


 


(k)                                  The Company is
not a party to any agreement, contract, arrangement or plan that has resulted,
or would result, in a payment that would not be fully deductible as a result of
Section 280G of the IRC or any similar provision of state, local or
foreign Law.  There is no agreement that
binds the Company to be liable for an amount based on an excise tax to the
recipient of such payment pursuant to Section 4999 of the IRC.


 


(l)                                     The Company
will not be required to include any item of income in, or exclude any item of
deduction from, taxable income for any taxable period (or portion thereof)
ending after the Closing Date as a result of any (i) “closing agreement”
as described in Section 7121 of the IRC (or any corresponding or similar
provision of state, local or foreign income Tax Law) executed on or prior to
the Closing Date; (ii) installment sale or open transaction disposition
made on or prior to the Closing Date; or (iii) prepaid amount received on
or prior to the Closing Date.


 


17

















 


(m)                               None of the
property or assets of the Business has been financed with or directly or
indirectly secures any industrial revenue bonds or debt the interest on which
is tax-exempt under Section 103(a) of the IRC.  The Seller, with respect to the Business, is
not a borrower or guarantor of any outstanding industrial revenue bonds, and is
not a principal user or related person to any principal user (within the
meaning of Section 144(a) of the IRC) of any property that has been
financed or improved with the proceeds of any industrial revenue bonds.


 


(n)                                 The Company,
since its organization, has been a disregarded entity for federal, state and
local income Tax purposes.


 


(o)                                 The Company is
not a party to any joint venture, partnership or other arrangement or contract
that could be treated as a partnership for federal income tax purposes and none
of the Company assets are a partnership interest or other arrangement or
contract that could be treated as a partnership for federal income tax
purposes.


 


(p)                                 The Company
does not have any liability for the Taxes of any Person as a transferee or
successor, by contract or otherwise.


 


(q)                                 The Seller,
with respect to the Business, is not liable for Taxes (other than any accrued
Taxes not yet due and payable) to any foreign taxing authority and do not have
and has not had a permanent establishment in any foreign country, as defined in
any applicable tax treaty or convention between the United States and such
foreign country.


 


(r)                                    True, correct
and complete copies of all income Tax Returns, tax examination reports and
statements of deficiencies assessed against, or agreed to of the Seller, with
respect to the Business, with respect to the five (5) taxable years prior
to December 31, 2008 with the Internal Revenue Service or any taxing
authority have been delivered to Purchaser.


 


3.7.                              COMPLIANCE WITH LEGAL REQUIREMENTS; GOVERNMENTAL AUTHORIZATIONS


 


(a)                                  Except as set
forth in Part 3.7 of the Disclosure Letter:


 


(i)                                     The Plant is
not in violation of any material Legal Requirement that is applicable to it or
to its operation, subject to obtaining all Governmental Authorizations required
after transfer of the Plant to the Company; and


 


(ii)                                  Seller has not
received, at any time since January 1, 2008, any written notice or other
communication from any Governmental Body or any other Person regarding (A) any
actual, alleged, possible, or potential violation of, or failure to comply
with, any Legal Requirement, or (B) any actual, alleged, possible, or
potential obligation on the part of 


 


18

















 


the
Company to undertake, or to bear all or any portion of the cost of, any
remedial action of any nature.


 


(b)                                 Part 3.7
of the Disclosure Letter contains a complete and accurate list of each
Governmental Authorization that is held by the Company or that otherwise
relates to the Plant.  Part 3.7 of
the Disclosure Letter specifically identifies and distinguishes each such
Governmental Authorization required to operate the Plant that is not held by
the Company as of the date hereof.  The
Governmental Authorizations listed in Part 3.7 of the Disclosure Letter
collectively constitute all of the Governmental Authorizations necessary to
permit the Company (i) to lawfully conduct and operate the Business in the
manner the Company currently conducts and operates the Business (and in the
manner the Company anticipates conducting and operating the Business) and (ii) to
own and use the Plant in accordance with Seller’s historical use.


 


3.8.                              LEGAL PROCEEDINGS; ORDERS


 


(a)                                  There is no
pending Proceeding:


 


(i)                                     that has been
commenced by or against the Company or Seller (with respect to the Business) or
that otherwise relates to or may affect the business of, or any of the assets,
including the Plant, owned or used by, the Company; or


 


(ii)                                  that
challenges, or that may have the effect of preventing, delaying, making
illegal, or otherwise interfering with, any of the Contemplated Transactions.


 


(b)                                 Except as set
forth in Part 3.8 of the Disclosure Letter, there is no Order to which any
of the Company or Seller (with respect to the Business), or any of the assets,
including the Plant, owned or used by the Company are subject.


 


3.9.                              NEWLY-FORMED ENTITY


 


The Company is a newly-formed entity that has
no Contracts or other obligations with respect to the Plant, except as created
or specifically incurred in connection with the Contemplated Transactions or as
described in the last sentence of Section 3.3.


 


3.10.                        ENVIRONMENTAL MATTERS


 


Except as set forth in Part 3.10 of the
Disclosure Letter:


 


(a)                                  The Plant is,
and at all times has been, in full compliance with all Environmental Laws.  Seller has properly obtained and is in
compliance with all Governmental Authorizations and has properly made all
filings with and submissions to any Governmental Body or other authority
required pursuant to any Environmental Law. 
No deficiencies have been asserted by any such Governmental Body with
respect to such items.


 


19
















 


(b)                                 Neither Seller
nor the Company has received any actual or Threatened order, notice, notification, demand, request for information,
citation, summons or order or other communication from (i) any
Governmental Body or private citizen, (ii) the current or prior owner or
operator of the Plant, or (iii) any Person of any actual or potential
violation or failure to comply with any Environmental Law, or of any actual or
Threatened obligation to undertake or bear the cost of any Environmental,
Health, and Safety Liabilities with respect to the Plant.  In addition,
no complaint has been filed, no penalty has been assessed, and no
investigation, action, claim, suit, proceeding or review (or any reasonable
basis therefor) is pending or, to the Knowledge of the Seller or the Company,
is Threatened by any Governmental Authority or other Person relating to the
Company or the Plant relating to or arising out of any Environmental Law or
relating to any Environmental, Health, and Safety Liabilities.


 


(c)                                  There has been
no Release of any Hazardous Materials on, beneath, above, into, at or from the
Plant or into the Environment.


 


(d)                                 There are no Environmental, Health, and Safety
Liabilities regarding or relating to the Plant
of any kind whatsoever, whether accrued, contingent, absolute, determined,
determinable or otherwise arising under or relating to any Environmental Law or
any Hazardous Materials and there is no condition, situation or set of
circumstances that could reasonably be expected to result in or be the basis for
any Environmental, Health, and Safety Liabilities regarding or relating
to the Plant.


 


(e)                                  No Hazardous Materials are present in, on, under or at
the Plant.


 


(f)                                    Neither Seller nor the Company has transported, stored, used, manufactured,
disposed of, sold, released or exposed its employees or any other Person to any
Hazardous Materials, or arranged for the disposal, discharge, storage or
release of any Hazardous Materials, and does not currently engage in any of the
foregoing activities, in violation of any applicable Environmental Law.


 


(g)                                 There are and have been no asbestos fibers or materials, lead,
polychlorinated biphenyls, or underground storage tanks or related piping on or
beneath the Plant.


 


(h)                                 There has been no environmental investigation, study, audit, test, report,
review or other analysis conducted regarding the Plant or any part thereof that
identifies any actual or potential Hazardous Materials, Release, or
Environmental, Health, and Safety Liabilities regarding or related to the Plant
that has not been provided to the Buyer prior to the date of this Agreement.


 


(i)                                     Neither Seller
nor the Company has ever received from any Person any notice of, nor does
Seller or the Company have any Knowledge of, any past, present or anticipated
future events, conditions, circumstances, activities, practices, incidents,
actions, agreements or plans that could: (i) interfere with, 


 


20

















 


prevent,
or increase the costs of compliance or continued compliance with any
Environmental Law or any renewal or transfer thereof of any Environmental Law; (ii) make
more stringent any restriction, limitation, requirement or condition under any
permit or any other Environmental Law in connection with the ownership, use, or
operation at or on the Plant; or (iii) give rise to any Environmental,
Health, and Safety Liabilities or form the basis of any civil, criminal or
administrative action, suit, summons, citation, complaint, claim, notice,
demand, request, judgment, order, lien, proceeding, hearing, study, inquiry or
investigation involving the Plant or Seller, based on or related to any
Environmental Law or to the presence, manufacture, generation, refining,
processing, distribution, use, sale, treatment, recycling, receipt, storage,
disposal, transport, handling, emission, discharge, release or threatened
release of any Hazardous Materials.


 


(j)                                     The Plant and
all of its current and previous conditions on and uses of, do not cause and
have not caused any Environmental, Health, and Safety Liabilities or any other
liability to be incurred by Seller under any present and future Environmental
Law.


 


(k)                                  No expenditure
will be required in order for Seller or the Company to comply with any
Environmental Law in effect at the time of the Closing in connection with the
operation or continued operation of the Plant in a manner consistent with the
prior, current or anticipated ownership, use, or operation thereof by Seller or
the Company.


 


3.11.                        INTELLECTUAL PROPERTY


 


(a)                                  Part 3.11
of the Disclosure Letter accurately describes and lists all (i) Intellectual
Property owned by the Company and (ii) all Intellectual Property licensed
by the Company and material to the Business (the “Business IP”).


 


(b)                                 Except as set
forth in Part 3.11 of the Disclosure Letter:


 


(i)                                     The Company is
the sole owner of the Business IP identified as owned by it, free and clear of
all Liens except as provided in the Loan Documents, and all such items are
valid and subsisting;


 


(ii)                                  The Business IP
is valid and enforceable and encompasses all Intellectual Property rights
necessary for the operation of the Business as proposed to be conducted;


 


(iii)                               The Company
(and prior to the Contribution, the Seller) and, to the Seller’s Knowledge, the
owners of the Business IP licensed to the Company have taken all actions
necessary to maintain and protect the Business IP;


 


(iv)                              There has been
no claim made or, to the Seller’s Knowledge, Threatened against the Seller or
the Company asserting the 


 


21

















 


invalidity,
misuse or unenforceability of any of the Business IP or challenging the Company’s
(or the Seller’s prior to the Contribution) right to use or ownership of any of
the Business IP, and there are no valid grounds for any such claim or
challenge;


 


(v)                                 No loss of any
of the Business IP is pending or, to the Seller’s Knowledge, Threatened;


 


(vi)                              The
consummation of the Contemplated Transactions will not alter, impair or
extinguish the Company’s rights in and to any of the Business IP, except as
provided in the Loan Documents;


 


(vii)                           There exists no
restriction on the Company’s use of the Business IP, or on the transfer of any
rights of the Company in and to any of the Business IP, and, except as provided
in the Loan Documents or the Food Grade Off-Take Agreement, the Company has the
right to use each item of Business IP without obligations to third parties;


 


(viii)                        To Seller’s
Knowledge, the conduct of the Business and operations of the Company and the
ownership, production, purchase, sale, licensing and use of the Company’s
products do not, and will not, contravene, conflict with, violate or infringe
upon any Intellectual Property of a Third Person or the terms of any license
with respect thereto. No proprietary information or trade secret included in
the Contribution has been misappropriated by the Seller from any third party
and no proprietary information or trade secret has been misappropriated by the
Company from any third party; and


 


(ix)                                The Business IP
and the products of the Business are not subject to a current claim of
infringement, interference or unfair competition or other similar claim and, to
the Seller’s Knowledge, the Business IP is not being infringed upon or violated
by any Third Person.


 


3.12.                        LABOR RELATIONS; COMPLIANCE


 


Except as set forth on Part 3.12 of the
Disclosure Letter, since January 1, 2008 neither Seller nor the Company
has been or is a party to any collective bargaining or other labor Contract nor
is the Company a successor to any such Contract or any other labor obligation
or liability required by Law or otherwise. Except as set forth on Part 3.12
of the Disclosure Letter, since January 1, 2008, there has not been, and
there is not presently pending or existing, (a) any strike, slowdown,
picketing, work stoppage, or employee grievance process, (b) any
Proceeding against or affecting the Company relating to the alleged violation
of any Legal Requirement pertaining to labor relations or employment matters,
including any charge or complaint filed by an employee or union with the
National Labor Relations Board, the Equal Employment Opportunity Commission,
federal Department of Labor (wage and hour), Office of Federal Contract
Compliance Programs (affirmative action/equal opportunity), or any comparable 


 


22

















 


Governmental Body,
organizational activity, or other labor or employment dispute against or
affecting any of the Company or their premises, or (c) any application for
certification of a collective bargaining agent. The Company is not liable for
the payment of any compensation, damages, taxes, fines, penalties, or other
amounts, however designated, for failure to comply with any Legal Requirements
related to employment matters.


 


3.13.                        BROKERS OR FINDERS


 


Except for the fees of BMO Capital to be paid
by Seller, Seller has not incurred any obligation or liability, contingent or
otherwise, for brokerage or finders’ fees or agents’ commissions or other
similar payment in connection with this Agreement.


 


4.                                       REPRESENTATIONS AND WARRANTIES OF BUYER


 


Buyer represents and warrants to Seller as
follows:


 


4.1.                              ORGANIZATION AND GOOD STANDING


 


Buyer is a corporation duly organized,
validly existing, and in good standing under the laws of the State of Delaware.


 


4.2.                              AUTHORITY; NO CONFLICT


 


(a)                                  This Agreement
constitutes the legal, valid, and binding obligation of Buyer, enforceable
against Buyer in accordance with its terms. Upon the execution and delivery by
Buyer of the LLC Agreement, the LLC Agreement will constitute the legal, valid,
and binding obligations of Buyer, enforceable against Buyer in accordance with
its terms. Buyer has the absolute and unrestricted right, power, and authority
to execute and deliver this Agreement and the LLC Agreement and to perform its
obligations under this Agreement and the LLC Agreement.


 


(b)                                 Neither the
execution and delivery of this Agreement by Buyer nor the consummation or
performance of any of the Contemplated Transactions by Buyer will give any
Person the right to prevent, delay, or otherwise interfere with any of the
Contemplated Transactions pursuant to:


 


(i)                                     any provision
of Buyer’s Organizational Documents;


 


(ii)                                  any resolution
adopted by the member of Buyer;


 


(iii)                               any Legal
Requirement or Order to which Buyer may be subject; or


 


(iv)                              any Contract to
which Buyer is a party or by which Buyer may be bound.


 


23

















 


Buyer is not and will not be required to
obtain any Consent from any Person in connection with the execution and
delivery of this Agreement or the consummation or performance of any of the
Contemplated Transactions.


 


4.3.                              INVESTMENT INTENT


 


Buyer is acquiring the Purchased Interest for
its own account and not with a view to their distribution within the meaning of
Section 2(11) of the Securities Act.


 


4.4.                              CERTAIN PROCEEDINGS


 


There is no pending Proceeding that has been
commenced against Buyer and that challenges, or may have the effect of
preventing, delaying, making illegal, or otherwise interfering with, any of the
Contemplated Transactions. To Buyer’s Knowledge, no such Proceeding has been
Threatened.


 


4.5.                              BROKERS OR FINDERS


 


Buyer and its officers and agents have
incurred no obligation or liability, contingent or otherwise, for brokerage or
finders’ fees or agents’ commissions or other similar payment in connection
with this Agreement and will indemnify and hold Seller harmless from any such
payment alleged to be due by or through Buyer as a result of the action of
Buyer or its officers or agents.


 


5.                                       START-UP OF PLANT


 


Promptly following closing, Buyer and Seller will,
and will cause the Company to:


 


(a)                                  commence
preparations to resume operating status for the Plant as soon as practicable;


 


(b)                                 reasonably
consult with each other concerning start-up efforts for the Plant; and


 


(c)                                  use Reasonable
Efforts to satisfactorily resolve the steam boiler issues related to the Plant
with Ameren Energy Resources Generating Company, including each of Seller and
Buyer paying one-half of the costs of any resolution; provided that any such
resolution of the foregoing issues subject to the prior written consent of each
of Buyer, Seller and the Company.


 


6.                                       RESERVED


 


7.                                       CONDITIONS PRECEDENT TO BUYER’S OBLIGATION TO CLOSE


 


Buyer’s obligation to purchase the Purchased
Interest and to take the other actions required to be taken by Buyer at the
Closing is subject to the satisfaction, at or prior to the Closing, of each of
the following conditions (any of which may be waived by Buyer, in whole or in
part):


 


24

















 


7.1.                              ACCURACY OF REPRESENTATIONS


 


All of Seller’s representations and
warranties in this Agreement (considered collectively), and each of these
representations and warranties (considered individually), must have been true,
accurate and complete as of the date hereof, and must be accurate in all
material respects as of the Closing Date as if made on the Closing Date.


 


7.2.                              CONSENTS


 


Each of the Consents
identified in Part 3.2 of the Disclosure Letter must have been obtained
and must be in full force and effect.


 


7.3.                              SELLER’S PERFORMANCE


 


(a)                                  All of the
covenants and obligations that Seller is required to perform or to comply with
pursuant to this Agreement at or prior to the Closing (considered
collectively), and each of these covenants and obligations (considered
individually), must have been duly performed and complied with in all material
respects.


 


(b)                                 Each document
required to be delivered by Seller and the Company pursuant to Section 2.4
must have been delivered.


 


7.4.                              NO PROCEEDINGS


 


Since the date of this Agreement, there must
not have been commenced or Threatened any Proceeding (a) involving any
challenge to, or seeking damages or other relief in connection with, any of the
Contemplated Transactions, or (b) that may have the effect of preventing,
delaying, making illegal, or otherwise interfering with any of the Contemplated
Transactions.


 


7.5.                              NO CLAIM REGARDING UNIT OWNERSHIP OR SALE PROCEEDS


 


There must not have been made or Threatened
by any Person any claim asserting that such Person (a) is the holder or
the beneficial owner of, or has the right to acquire or to obtain beneficial
ownership of, any membership interest in, or any other voting, equity, or
ownership interest in, the Company, or (b) is entitled to all or any
portion of the Purchase Price payable for the Purchased Interest.


 


7.6.                              NO PROHIBITION


 


Neither the consummation nor the performance
of any of the Contemplated Transactions will, directly or indirectly (with or
without notice or lapse of time), materially contravene, or conflict with, or
result in a material violation of, or cause Buyer or any Person affiliated with
Buyer to suffer any material adverse consequence under, (a) any applicable
Legal Requirement or Order, or (b) any Legal Requirement or Order that 


 


25

















 


has been published,
introduced, or otherwise formally proposed by or before any Governmental Body.


 


8.                                       CONDITIONS PRECEDENT TO SELLER’S OBLIGATION TO CLOSE


 


Seller’s obligation to sell the Purchased
Interest and to take the other actions required to be taken by Seller at the
Closing is subject to the satisfaction, at or prior to the Closing, of each of
the following conditions (any of which may be waived by Seller, in whole or in
part):


 


8.1.                              ACCURACY OF REPRESENTATIONS


 


All of Buyer’s representations and warranties
in this Agreement (considered collectively), and each of these representations
and warranties (considered individually), must have been true, accurate and
complete as of the date hereof and must be accurate in all material respects as
of the Closing Date as if made on the Closing Date.


 


8.2.                              BUYER’S PERFORMANCE


 


(a)                                  All of the
covenants and obligations that Buyer is required to perform or to comply with
pursuant to this Agreement at or prior to the Closing (considered collectively),
and each of these covenants and obligations (considered individually), must
have been performed and complied with in all material respects.


 


(b)                                 Buyer must have
delivered each of the documents required to be delivered by Buyer pursuant to Section 2.4.


 


8.3.                              CONSENTS


 


Each of the Consents
identified in Part 3.2 of the Disclosure Letter must have been obtained
and must be in full force and effect.


 


8.4.                              NO PROCEEDINGS


 


Since the date of this Agreement, there must
not have been commenced or Threatened against Seller, or against any Person
affiliated with Seller, any Proceeding (a) involving any challenge to, or
seeking damages or other relief in connection with, any of the Contemplated
Transactions, or (b) that may have the effect of preventing, delaying,
making illegal, or otherwise interfering with any of the Contemplated
Transactions.


 


8.5.                              NO PROHIBITION


 


Neither the consummation nor the performance
of any of the Contemplated Transactions will, directly or indirectly (with or
without notice or lapse of time), materially contravene, or conflict with, or
result in a material violation of, or cause Seller or any Person affiliated
with Seller to suffer any material adverse consequence under, (a) any
applicable Legal Requirement or Order, or (b) any Legal Requirement or
Order that 


 


26

















 


has been published,
introduced, or otherwise formally proposed by or before any Governmental Body.


 


9.                                       TERMINATION


 


9.1.                              TERMINATION EVENTS


 


This Agreement may, by notice given prior to
or at the Closing, be terminated:


 


(a)                                  by either Buyer
or Seller if a material Breach of any provision of this Agreement has been
committed by the other party and such Breach has not been waived or cured
within ten (10) days of the breaching party’s receipt of written notice of
such Breach;


 


(b)                                 (i) by
Buyer if satisfaction of any of the conditions in Section 7 is or becomes
impossible (other than through the failure of Buyer to comply with its
obligations under this Agreement) and Buyer has not waived such condition on or
before the Closing Date; or (ii) by Seller if satisfaction of any of the
conditions in Section 8 is or becomes impossible (other than through the
failure of Seller to comply with its obligations under this Agreement) and Seller
has not waived such condition on or before the Closing Date;


 


(c)                                  by mutual
consent of Buyer and Seller; or


 


(d)                                 by either Buyer
or Seller if the Closing has not occurred (other than through the failure of
any party seeking to terminate this Agreement to comply fully with its
obligations under this Agreement) on or before December 1, 2009, or such
later date as the parties may agree upon.


 


9.2.                              EFFECT OF TERMINATION


 


Each party’s right of termination under Section 9.1
is in addition to any other rights it may have under this Agreement or
otherwise, and the exercise of a right of termination will not be an election
of remedies. If this Agreement is terminated pursuant to Section 9.1, all
further obligations of the parties under this Agreement will terminate, except
that the obligations in Sections 11.1 (Expenses) and 11.3 (Confidentiality)
will survive; provided, however, that if this
Agreement is terminated by a party because of the Breach of the Agreement by
the other party or because one or more of the conditions to the terminating
party’s obligations under this Agreement is not satisfied as a result of the
other party’s failure to comply with its obligations under this Agreement, the
terminating party’s right to pursue indemnification under Article 10 and
all other legal remedies will survive such termination unimpaired.


 


27
















 


10.                                 INDEMNIFICATION; REMEDIES


 


10.1.                        SURVIVAL; RIGHT TO INDEMNIFICATION NOT AFFECTED BY KNOWLEDGE


 


All representations, warranties, covenants,
and obligations in this Agreement, the Disclosure Letter, the supplements to
the Disclosure Letter, the certificate delivered pursuant to Section 2.4(a),
and any other certificate or document delivered pursuant to this Agreement will
survive the Closing. The right to indemnification, payment of Damages or other
remedy based on such representations, warranties, covenants, and obligations
will not be affected by any investigation conducted, whether before or after
the execution and delivery of this Agreement or the Closing Date, with respect
to the accuracy or inaccuracy of or compliance with, any such representation, warranty,
covenant, or obligation, except to the extent the recipient of such
representation and warranty has Knowledge (i) of the inaccuracy and (ii) that
such inaccuracy was likely to cause damage without disclosing such Knowledge to
the party giving the representation and warranty prior to the Closing Date.


 


10.2.                        INDEMNIFICATION AND PAYMENT OF DAMAGES BY SELLER


 


Seller will indemnify, defend and hold
harmless Buyer, the Company, and their respective Representatives,
stockholders, controlling persons, and affiliates (collectively, the “Buyer
Indemnified Persons”) for, and will pay to the Buyer Indemnified Persons
the amount of, any loss, liability, claim, damage (including incidental and
consequential damages and a devaluation of the Purchased Interest related to a
Breach of this Agreement by Seller), expense (including costs of investigation
and defense and reasonable attorneys’ fees) (collectively, “Damages”),
arising, directly or indirectly, from or in connection with:


 


(a)                                  any Breach of
any representation or warranty made by Seller in this Agreement (after giving
effect to any supplement to the Disclosure Letter), the Disclosure Letter, the
supplements to the Disclosure Letter, or any other certificate or document
delivered by Seller pursuant to this Agreement;


 


(b)                                 any Breach by
Seller of any covenant or obligation of Seller in this Agreement; or


 


(c)                                  any claim by
any Person for brokerage or finder’s fees or commissions or similar payments
based upon any agreement or understanding alleged to have been made by any such
Person with either Seller or the Company (or any Person acting on their behalf)
in connection with any of the Contemplated Transactions.


 


Except in the case of fraud, intentional
misrepresentation, willful misconduct or the indemnification provided under Section 10.3,
the remedies provided in this Section 10.2 will be the exclusive remedy
available to Buyer, the Company and the other Buyer 


 


28

















 


Indemnified Persons with
respect to condition of the Plant and the Contemplated Transactions.


 


10.3.                        INDEMNIFICATION AND PAYMENT OF DAMAGES BY SELLER—ENVIRONMENTAL MATTERS


 


(a)                                  Seller will
release, indemnify, defend and hold harmless Buyer, the Company, and the other
Buyer Indemnified Persons for, and will pay to Buyer, the Company, and the
other Buyer Indemnified Persons the amount of, any Damages (including costs of
cleanup, containment, or other remediation) and any Environmental Health and
Safety Liabilities arising, directly or indirectly, from or in connection with
each of the following:


 


(i)                                     any violations
or alleged violations of Environmental Law relating to the Plant or the
Business originating (in whole or in part) prior to Closing or in connection
with the recommencement of production operations at the Plant subsequent to
Closing.


 


(ii)                                  any bodily
injury (including illness, disability, and death, and regardless of when any
such bodily injury occurred, was incurred, or manifested itself), personal
injury, property damage (including trespass, nuisance, wrongful eviction, and
deprivation of the use of real property), or other damage of or to any Person,
including any employee or former employee of Seller or the Company, in any way
arising from or allegedly arising from any Hazardous Activity conducted or
allegedly conducted with respect to the Plant or the operation of the Company
prior to the Closing Date, or from Hazardous Material that was (A) present
or suspected to be present on or before the Closing Date on, under or from the
Plant or (B) Released or allegedly Released by Seller or the Company, at
any time on or prior to the Closing Date.


 


(iii)                               any Known
Environmental Condition (to the extent not covered by Sections 10.3(a)(i) or
(ii)): (A) where Buyer, Seller, the Plant or the Company is required by an
Environmental Law or a Governmental Body to Cleanup such Known Environmental
Condition; or (B) arising out of or in response to any actual or
Threatened claim, allegation, or Proceeding by any third party, including, but
not limited to, a Governmental Body. 
Seller’s indemnity obligation under this Section 10.3(a)(iii) for
Damages related to the diminution of the fair market value of the Plant shall
be limited to 50% of such Damages provided that the Seller undertakes and
completes in an expeditious manner all Cleanup of the Plant associated with the
Environmental, Safety and Health Liability at issue, by entering the Plant into
the Illinois Site Remediation Program (or a substantially similar program if
the Site Remediation Program is not in existence at such time) and obtaining a “No
Further Remediation” Letter from the applicable Governmental Body (currently,
the Illinois Environmental Protection Agency) such that the Known Environmental



 


29

















 


Condition
at the Plant is Cleaned-up to cleanup standards published by the applicable
Governmental Body applicable to commercial or industrial property and Seller
shall not impose upon the Plant any institutional, engineering, or land use
controls except to the extent approved in advance in writing by Buyer, in its
reasonable discretion.


 


(iv)                              any Known
Environmental Condition (to the extent not covered by Sections 10.3(a)(i),
(ii), or (iii)): (A) where Buyer, Seller, the Plant or the Company is not
required by an Environmental Law or a Governmental Body to Cleanup such Known
Environmental Condition; or (B) which does not arise out of or is not in
response to any actual or Threatened claim, allegation, or Proceeding by any
Third Person, including, but not limited to, a Governmental Body.  Seller’s indemnity obligation under this Section 10.3(a)(iv) shall
be limited to 50% of any such Damages or Environmental Health and Safety
Liabilities.


 


(v)                                 any Unknown
Environmental Condition (to the extent not covered by Sections 10.3(a)(i) or
(ii)): (A) where Buyer, Seller, the Plant or the Company is required by an
Environmental Law or a Governmental Body to Cleanup such Unknown Environmental
Condition; or (B) arising out of or in response to any actual or
Threatened claim, allegation, or Proceeding by any Third Person, including, but
not limited to, a Governmental Body. 
Seller’s indemnity obligation under this Section 10.3(a)(v) for
Damages related to the diminution of the fair market value of the Plant shall
be limited to 50% of such Damages provided that the Seller undertakes and
completes in an expeditious manner all Cleanup of the Plant associated with the
Environmental, Safety and Health Liability at issue, by entering the Plant into
the Illinois Site Remediation Program (or a substantially similar program if
the Site Remediation Program is not in existence at such time) and obtaining a “No
Further Remediation” Letter from the applicable Governmental Body (currently,
the Illinois Environmental Protection Agency) such that the Unknown
Environmental Condition at the Plant is Cleaned-up to cleanup standards
published by the applicable Governmental Body applicable to commercial or
industrial property and Seller shall not impose upon the Plant any
institutional, engineering, or land use controls except to the extent approved
in advance in writing by Buyer, in its reasonable discretion.


 


(vi)                              any Unknown
Environmental Condition (to the extent not covered by Sections 10.3(a)(i),
(ii), or (v)): (A) where Buyer, Seller, the Plant or the Company is not
required by an Environmental Law or a Governmental Body to Cleanup such Unknown
Environmental Condition; or (B) which does not arise out of or is not in
response to any actual or Threatened claim (including any claim which could legally
be lodged but has not been Threatened), allegation, or Proceeding by any Third
Person, including, but not limited to, a Governmental Body.  Seller’s indemnity 


 


30

















 


obligation
under this Section 10.3(a)(vi) shall be limited to 50% of any such
Damages or Environmental Health and Safety Liabilities.


 


(b)                                 Subject to the
above and Seller providing prompt prior written notice to Buyer of any Cleanup
or any Proceeding related thereto, Seller will be entitled to control any
Cleanup, any related Proceeding, and, except as provided in the following
sentence, any other Proceeding with respect to which indemnity may be sought
under this Section 10.3. The procedure described in Section 10.8 will
apply to any claim solely for monetary damages relating to a matter covered by
this Section 10.3.


 


(c)                                  Any
indemnification with respect to environmental matters that could be brought
under this Section 10.3 shall be governed by this Section 10.3 and
not by Section 10.2 as it relates to a Breach of Section 3.10 caused
by such environmental matter; provided, that
the foregoing limitation shall not affect Buyer’s right to seek indemnification
pursuant to Section 10.2 for any Breach of Section 3.10 not addressed
by this Section 10.3.


 


10.4.                        INDEMNIFICATION AND PAYMENT OF DAMAGES BY BUYER


 


Buyer will indemnify, defend and hold
harmless Seller, and will pay to Seller the amount of any Damages arising,
directly or indirectly, from or in connection with (a) any Breach of any
representation or warranty made by Buyer in this Agreement or in any
certificate delivered by Buyer pursuant to this Agreement, (b) any Breach
by Buyer of any covenant or obligation of Buyer in this Agreement, or (c) any
claim by any Person for brokerage or finder’s fees or commissions or similar
payments based upon any agreement or understanding alleged to have been made by
such Person with Buyer (or any Person acting on its behalf) in connection with
any of the Contemplated Transactions.


 


10.5.                        TIME LIMITATIONS


 


Except with respect to Sections 3.6 (Taxes)
and 3.10 (Environmental Matters) (which will survive Closing through the
applicable statute of limitations), if the Closing occurs, Seller will have no
liability (for indemnification or otherwise) with respect to any representation
or warranty, or covenant or obligation to be performed and complied with prior
to the Closing Date, unless on or before the second anniversary of the Closing
Date, Buyer notifies Seller of a claim specifying the factual basis of that
claim in reasonable detail to the extent then known by Buyer; a claim for
indemnification or reimbursement based upon any covenant or obligation to be
performed and complied with after the Closing Date may be made at any time. If
the Closing occurs, Buyer will have no liability (for indemnification or
otherwise) with respect to any representation or warranty, or covenant or
obligation to be performed and complied with prior to the Closing Date, unless
on or before the second anniversary of the Closing Date Seller notifies Buyer
of a claim specifying the factual basis of that claim in reasonable detail to
the extent then known by Seller.


 


31

















 


10.6.                        LIMITATIONS ON AMOUNT—SELLER


 


Except with respect to Sections 3.6 (Taxes)
and 3.10 (Environmental Matters) (which will survive Closing through the
applicable statute of limitations and any claim on which shall not be subject
to this Section 10.6), Seller will have no liability (for indemnification
or otherwise) with respect to the matters described in clause (a) or
clause (b) of Section 10.2 until the total of all Damages with
respect to such matters exceeds $150,000, and then to the full extent of all
such Damages, up to a maximum of $15,000,000. Notwithstanding anything herein
to the contrary, Seller will have no liability (for indemnification or
otherwise) with respect to this Agreement or the Contemplated Transactions in
excess of $15,000,000 other than in the case of a claim for Breach of Section 3.6
(Taxes) or Section 3.10 (Environmental Matters) or a claim under Section 10.3.  However, this Section 10.6 will not
apply (i) in the case of fraud, willful misconduct or intentional
misrepresentation by Seller and (ii) to any Breach of any of Seller’s
representations and warranties of which Seller had Knowledge at any time prior
to the date on which such representation and warranty is made, and Seller will
be liable for all Damages with respect to such Breaches.


 


10.7.                        LIMITATIONS ON AMOUNT—BUYER


 


Buyer will have no liability (for
indemnification or otherwise) with respect to the matters described in clause (a) or
(b) of Section 10.4 until the total of all Damages with respect to
such matters exceeds $150,000, and then to the full extent of all such Damages,
up to a maximum of $15,000,000. However, this Section 10.7 will not apply
to any Breach of any of Buyer’s representations and warranties of which Buyer
had Knowledge at any time prior to the date on which such representation and
warranty is made or any intentional Breach by Buyer of any covenant or
obligation, and Buyer will be liable for all Damages with respect to such
Breaches.


 


10.8.                        PROCEDURE FOR INDEMNIFICATION


 


(a)                                  Promptly after
receipt by an indemnified party under Section 10.2, 10.4, or (to the
extent provided in the last sentence of Section 10.3(c)) Section 10.3
of notice of the commencement of any Proceeding against it, such party seeking
indemnification (the “Indemnified Party”) shall give written notice to
the indemnifying party (the “Indemnifying Party”) specifying the facts
constituting the basis for such claim and the amount, to the extent known, of
the claim asserted; provided, that
the failure to notify the Indemnifying Party will not relieve the Indemnifying
Party of any liability that it may have to any Indemnified Party, except to the
extent that the Indemnifying Party is prejudiced by the Indemnified Party’s
failure to give such notice.


 


(b)                                 If any
Proceeding referred to in Section 10.8(a) is brought against the
Indemnified Party by any claimant other than the Indemnifying Party (a “Third
Person”), the Indemnified Party shall give reasonably prompt notice to the
Indemnifying Party of the commencement of such Proceeding after such
commencement is actually known to the Indemnified Party; provided, that the 


 


32

















 


failure
to notify the Indemnifying Party will not relieve the Indemnifying Party of any
liability that it may have to any Indemnified Party, except to the extent that
the Indemnifying Party is prejudiced by the Indemnified Party’s failure to give
such notice.  The Indemnifying Party will
be entitled to, upon written notice to the Indemnified Party, and using counsel
reasonably satisfactory to the Indemnified Party, to assume the defense, investigate,
contest or settle such Proceeding brought by such Third Person (a “Third
Person Claim”); provided that
the Indemnifying Party has unconditionally acknowledged to the Indemnified
Party in writing its obligation to indemnify the Persons to be indemnified
hereunder with respect to such Third Person Claim and, subject to Sections 10.6
and 10.7, to discharge any cost or expense arising out of such investigation,
contest or settlement and provided that any settlement shall include an
unconditional release of such claim against the Indemnified Party. The
Indemnifying Party will not, as long as it diligently conducts such defense, be
liable to the Indemnified Party under this Section 10 for any fees of
other counsel or any other expenses with respect to the defense of such
Proceeding, in each case subsequently incurred by the Indemnified Party in
connection with the defense of such Proceeding, other than reasonable costs of
investigation. If the Indemnifying Party assumes the defense of a Proceeding, (i) it
will be conclusively established for purposes of this Agreement that the claims
made in that Proceeding are within the scope of and subject to indemnification;
and (ii) no compromise or settlement of such claims may be effected by the
Indemnifying Party without the Indemnified Party’s consent unless (A) there
is no finding or admission of any violation of Legal Requirements or any
violation of the rights of any Person and no effect on any other claims that
may be made against the Indemnified Party, and (B) the sole relief
provided is monetary damages that are paid in full by the Indemnifying Party.
If notice is given to an Indemnifying Party of the commencement of any
Proceeding and the Indemnifying Party does not, within ten days after the
Indemnified Party’s notice is given, give notice to the Indemnified Party of
its election to assume the defense of such Proceeding, the Indemnifying Party
will be bound by any determination made in such Proceeding or any compromise or
settlement effected by the Indemnified Party.


 


(c)                                  Notwithstanding
the foregoing, if an Indemnified Party determines in good faith that there is a
reasonable probability that a Proceeding may adversely affect it or its
affiliates other than as a result of monetary damages for which it would be
entitled to indemnification under this Agreement, the Indemnified Party may, by
notice to the Indemnifying Party, assume the exclusive right to defend,
compromise, or settle such Proceeding, but the Indemnifying Party will not be
bound by any determination of a Proceeding so defended or any compromise or
settlement effected without its consent (which may not be unreasonably
withheld).


 


(d)                                 Notwithstanding
the provisions of Section 11.5 but solely as between Seller and Buyer for
the purposes of carrying out the intent of this Section 10.8, Seller and
Buyer hereby consent to the non-exclusive jurisdiction of any court in which a
Proceeding is brought by a Third Person against any 


 


33

















 


Indemnified
Party for purposes of any claim that an Indemnified Party may have under this
Agreement with respect to such Proceeding or the matters alleged therein.


 


10.9.                        COORDINATION WITH CONTRIBUTION AGREEMENT


 


Notwithstanding anything in
this Agreement or the Contribution Agreement to the contrary, to the extent
that any party is entitled to indemnification under both this Agreement and the
Contribution Agreement based on the same fact(s), circumstance(s), transaction(s) or
event(s) constituting the basis for such claim(s) and the same
damages with respect to such claim(s), said party shall be entitled only to a
single recovery for such damages.  Any
resolution of any claim(s) under this Agreement or the Contribution
Agreement pursuant to the foregoing sentence shall resolve the claim(s) as
to both such agreements.


 


11.                                 GENERAL PROVISIONS


 


11.1.                        EXPENSES


 


Except as otherwise expressly provided in
this Agreement or the other Contemplated Transaction documents, each party to
this Agreement will bear its respective expenses incurred in connection with
the preparation, execution, and performance of this Agreement and the
Contemplated Transactions, including all fees and expenses of agents,
representatives, counsel, and accountants. Seller will pay all amounts payable
to BMO Capital in connection with this Agreement and the Contemplated
Transactions.  In the event of
termination of this Agreement, the obligation of each party to pay its own
expenses will be subject to any rights of such party arising from a Breach of
this Agreement by another party.


 


11.2.                        PUBLIC ANNOUNCEMENTS


 


Any public announcement or similar publicity
with respect to this Agreement or the Contemplated Transactions is subject to
the prior written approval of both Buyer and Seller, except that either Buyer
or Seller shall be permitted to make any public announcement required by
applicable Legal Requirements or the rules of any stock exchange upon
which Buyer or Seller (or their affiliates) are listed; provided
that the party making such public announcement shall provide the other party a
reasonable opportunity to review and comment on any such public
announcement.  Seller and Buyer will
consult with each other concerning the means by which the Company’ employees,
customers, and suppliers and others having dealings with the Company will be
informed of the Contemplated Transactions.


 


11.3.                        CONFIDENTIALITY


 


The existing Mutual Non-Disclosure Agreement
dated February 6, 2009 between SEACOR Energy Inc. and Seller will remain
in full force and effect.


 


34
















 


11.4.                        NOTICES


 


All notices, consents, waivers, and other
communications under this Agreement must be in writing and will be deemed to
have been duly given when (a) delivered by hand (with written confirmation
of receipt), (b) sent by telecopier (with written confirmation of
receipt), provided that a copy is mailed by registered mail, return receipt
requested, or (c) when received by the addressee, if sent by a nationally
recognized overnight delivery service (receipt requested), in each case to the
appropriate addresses and telecopier numbers set forth below (or to such other
addresses and telecopier numbers as a party may designate by notice to the
other parties):


 


Seller:


MGP
Ingredients, Inc.


Cray
Business Plaza


100
Commercial St., P.O. Box 130


Atchison,
Kansas 66002


Attention:
Timothy W. Newkirk, President


Facsimile
No.: (913) 367-


 


with
a copy to: 


Lathrop &
Gage LLP


2345
Grand Blvd, Suite 2200


Kansas
City, Missouri 64108


Attention:
Wallace E. Brockhoff, Esq.


Facsimile
No.:  (816) 292-2001


 


Buyer:



Illinois
Corn Processing Holdings LLC


c/o
SEACOR Energy Inc. 


11200
Richmond Avenue, Suite 400


Houston,
Texas 77082


Attention:
Peter Coxon


Facsimile
No.: (281) 670-0680


 


with
a copy to:                 


Bryan
Cave LLP


211
N. Broadway, Suite 3600


Saint
Louis, MO 63102


Attention:
J. Powell Carman


Facsimile
No.: (314) 552-8070


 


11.5.                        JURISDICTION; SERVICE OF PROCESS


 


Any action or proceeding seeking to enforce
any provision of, or based on any right arising out of, this Agreement may be
brought against any of the parties in the courts of the State of Illinois,
County of Cook, or, if it has or can acquire jurisdiction, in the United States
District Court for the Northern District of Illinois, and each of the 


 


35

















 


parties consents to the
jurisdiction of such courts (and of the appropriate appellate courts) in any
such action or proceeding and waives any objection to venue laid therein.
Process in any action or proceeding referred to in the preceding sentence may
be served on any party anywhere in the world.


 


11.6.                        FURTHER ASSURANCES


 


The parties agree (a) to furnish upon
request to each other such further information, (b) to execute and deliver
to each other such other documents, and (c) to do such other acts and
things, all as the other party may reasonably request for the purpose of
carrying out the intent of this Agreement and the documents referred to in this
Agreement.


 


11.7.                        WAIVER


 


The rights and remedies of the parties to
this Agreement are cumulative and not alternative. 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 will operate as a
waiver of such right, power, or privilege, and no single or partial exercise of
any such right, power, or privilege will 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
claim or right arising out of this Agreement or the documents referred to in
this Agreement can be discharged by one party, in whole or in part, by a waiver
or renunciation of the claim or right unless in writing signed by the other
party; (b) no waiver that may be given by a party will be applicable
except in the specific instance for which it is given; and (c) no notice
to or demand on one party will be deemed to be a waiver of any obligation of
such party or of the right of the party giving such notice or demand to take
further action without notice or demand as provided in this Agreement or the
documents referred to in this Agreement.


 


11.8.                        ENTIRE AGREEMENT AND MODIFICATION


 


Except as provided in Section 11.3, this
Agreement (along with the documents referred to in this Agreement) supersedes
all prior agreements between the parties with respect to its subject matter
(including the Letter of Intent between Buyer and Seller dated September 15,
2009) and constitutes (along with the documents referred to in this Agreement)
a complete and exclusive statement of the terms of the agreement between the
parties with respect to its subject matter. This Agreement may not be amended
except by a written agreement executed by the party to be charged with the
amendment.


 


11.9.                        ASSIGNMENTS, SUCCESSORS, AND NO THIRD-PARTY RIGHTS


 


Neither party may assign any of its rights
under this Agreement without the prior consent of the other party.  Subject to the preceding sentence, this
Agreement will apply to, be binding in all respects upon, and inure to the
benefit of the successors and permitted assigns of the parties. Nothing
expressed or referred to in this Agreement will be construed to give any Person
other than the parties to this Agreement any legal or 


 


36

















 


equitable right, remedy, or
claim under or with respect to this Agreement or any provision of this
Agreement. This Agreement and all of its provisions and conditions are for the
sole and exclusive benefit of the parties to this Agreement and their successors
and assigns.


 


11.10.                  SEVERABILITY


 


If any provision of this Agreement is held
invalid or unenforceable by any court of competent jurisdiction, the other
provisions of this Agreement will remain in full force and effect. Any
provision of this Agreement held invalid or unenforceable only in part or
degree will remain in full force and effect to the extent not held invalid or
unenforceable.


 


11.11.                  SECTION HEADINGS,
CONSTRUCTION


 


The headings of Sections in this Agreement
are provided for convenience only and will not affect its construction or
interpretation. All references to “Section” or “Sections” refer to the
corresponding Section or Sections of this Agreement. All words used in
this Agreement will be construed to be of such gender or number as the
circumstances require. Unless otherwise expressly provided, the word “including”
does not limit the preceding words or terms.


 


11.12.                  TIME OF
ESSENCE


 


With regard to all dates and time periods set
forth or referred to in this Agreement, time is of the essence.


 


11.13.                  GOVERNING
LAW


 


This Agreement will be governed by the laws
of the State of Delaware without regard to conflicts of laws principles.


 


11.14.                  COUNTERPARTS


 


This Agreement may be executed in multiple
counterparts, all of which will be considered one and the same agreement and
will become effective when one or more counterparts have been signed by each of
the parties and delivered to the other parties, regardless of whether all of
the parties have executed the same counterpart. 
Counterparts may be delivered via facsimile, electronic mail (including
pdf) or other transmission method and any counterpart so delivered shall be
deemed to have been duly and validly delivered and be valid and effective for
all purposes.


 


[Signature Page follows]


 


37

















 


IN WITNESS WHEREOF, the parties have executed
and delivered this Agreement as of the date first written above.


 


	
  Buyer:

  	
  Seller:

  
	
  Illinois
  Corn Processing Holdings LLC

  	
  MGP
  Ingredients, Inc.

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/
  Peter Coxon

  	
   

  	
  By:

  	
  /s/
  Timothy W. Newkirk

  
	
   

  	
  Peter
  Coxon, President

  	
   

  	
   

  	
  Timothy
  W. Newkirk, President

  



 


SIGNATURE
PAGE TO


LLC
INTEREST PURCHASE AGREEMENT


 

















 


Exhibit A


 


Legal Description of Plant real estate


 


Tract I:


 


A part of the Northeast
Quarter of Fractional Section 9, and a part of Lots 6 and 8 in the
Southeast Quarter of Fractional Section 4, said Lots 6 and 8 being shown
on plat recorded on page 57 of Plat Book “B”, in the Recorder’s Office of
Tazewell County, Illinois, all being in Township 24 North, Range 5 West of the
Third Principal Meridian, Tazewell County, Illinois, and more particularly
described as follows:


 


Commencing at the Northeast
corner of said Northeast Quarter of Fractional Section 9; thence South 89
degrees 29 minutes 14 seconds West, along the North line of said Fractional Section 9,
a distance of 1,629.48 feet to the place of beginning; thence from said place
of beginning South 20 degrees 05 minutes 14 seconds West a distance of 13.41
feet; thence South 86 degrees 48 minutes 22 seconds East a distance of 267.42
feet; thence South 00 degrees 56 minutes 03 seconds West a distance of 159.82
feet to the North line of The Quaker Oats Company by deed recorded in Book
2045, page 72, of the Tazewell County Recorder’s Office; thence South 89
degrees 27 minutes 16 seconds West along said North line a distance of 104.33
feet; thence South 00 degrees 56 minutes 03 seconds West along the West line of
The Quaker Oats Company property as described in aforementioned deed, a
distance of 253.00 feet to the South line of The American Distilling Company
property; thence South 89 degrees 27 minutes 16 seconds West along the South
line of The American Distilling property, a distance of 850.76 feet to the
Southeast corner of a parcel conveyed by The American Distilling Company to
Pekin River and Warehouse Terminal, Inc. by deed recorded in Book 2351, page 208,
of the Tazewell County Recorder’s Office; thence North 25 degrees 40 minutes 22
seconds West along Easterly line of said parcel, a distance of 371.70 feet,
thence North 00 degrees 02 minutes 54 seconds West along Easterly line of said
parcel, a distance of 106.63 feet to the South line of said Fractional Section 4;
thence continuing North 00 degrees 02 minutes 54 seconds along Easterly line of
said parcel 77.64 feet to the Northerly corner of Pekin River and Warehouse
Terminal Inc. property, and also being a point on the Northwesterly line of Lot
8 as recorded in Plat Book “B”, page 57, of the Tazewell County Recorder’s
Office; thence North 46 degrees 59 minutes 11 seconds East along the
Northwesterly line, of said Lot 8 a distance of 1,110.92 feet; thence South 43
degrees 00 minutes 54 seconds East a distance of 280.47 feet; thence South 42
degrees 00 minutes 08 seconds West, a distance of 188.94 feet; thence South 19
degrees 51 minutes 12 seconds West, a distance of 276.07 feet; thence South 69
degrees 54 minutes 46 seconds East, a distance of 148.90 feet; thence South 20
degrees 05 minutes 14 seconds West, a distance of 182.59 feet to the place of
beginning; situate, lying and being in the County of Tazewell and State of
Illinois.


 


EXHIBIT
TO


LLC
INTEREST PURCHASE AGREEMENT


 

















 


Tract II:


 


A part of the Northeast
Quarter of Fractional Section 9, and a part of Lots 6 and 8 in the
Southeast Quarter of Fractional Section 4, said Lots 6 and 8 being shown
on plat recorded in page 57 of Plat Book “B” in the Recorder’s Office of
Tazewell County, Illinois, all being in Township 24 North, Range 5 West of the
Third Principal Meridian, Tazewell County, Illinois and more particularly
described as follows:


 


Commencing
at the Southeast corner of the Southeast Quarter of said Fractional Section 4;
thence South 89 degrees 29 minutes 14 seconds West, along the South line of the
Southeast Quarter of said Fractional Section 4, a distance of 1,020.92
feet to a concrete monument being the Place of Beginning for the Tract herein
being described; thence North 37 degrees 03 minutes 04 seconds East a distance
of 1,013.11 feet; thence North 57 degrees 55 minutes West a distance of 292.65
feet to the Northwesterly right-of-way line of South Front Street; thence North
29 degrees 56 minutes 48 seconds East, along the Northeasterly right-of-way
line of South Front Street, a distance of 481.39 feet to a concrete monument;
thence North 46 degrees 54 minutes 36 seconds West a distance of 263.31 feet to
a point on the Northeasterly line of Lot 6 as recorded in Plat Book “B”, page 57,
of the Tazewell County Recorder’s Office; thence North 24 degrees 46 minutes 48
seconds West, along the Northeasterly line of said Lot 6 a distance of 35.6
feet; thence North 87 degrees 04 minutes 48 seconds West a distance of 214.55
feet to a point on the Northwesterly line of said Lot 6; said point being 200
feet from the Northerly corner of said Lot 6; thence South 46 degrees 59
minutes 11 seconds West, along the Northwesterly line of said Lot 6 and Lot 8
as recorded in Plat Book “B”, page 57 of the Tazewell County Recorder’s
Office, a distance of 1,146.23 feet to the Northerly corner of Tract I
previously described; thence South 43 degrees 00 minutes 54 seconds East, along
said Tract I, a distance of 280.47 feet; thence South 42 degrees 00 minutes 08
seconds West, along said Tract I, a distance of 188.94 feet; thence South 19
degrees 51 minutes 12 seconds West, along said Tract I, a distance of 276.07
feet; thence South 69 degrees 54 minutes 46 seconds East, along said Tract I, a
distance of 148.90 feet; thence South 20 degrees 05 minutes 14 seconds West,
along said Tract I, a distance of 196.00 feet; thence South 86 degrees 48
minutes 22 seconds East, along said Tract I, a distance of 267.42 feet; thence
South 00 degrees 56 minutes 03 seconds West, along said Tract I, a distance of
159.82 feet to the property line of Quaker Oats Company; thence North 89
degrees 27 minutes 16 seconds East, along said property line a distance of
345.67 feet; thence North 00 degrees 56 minutes 03 seconds East, along said
property line, a distance of 189.47 feet of the Place of Beginning; situate,
lying and being in the County of Tazewell and State of Illinois.


 


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