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