Exhibit 10.5


 


RIDER TO DP INDUSTRIAL ANNEXATION AGREEMENT


 


THIS RIDER (this “Rider”) is attached to and made a part of that
certain Annexation Agreement dated of even date herewith (the “Annexation
Agreement”) by and between (i) The City Of Rochelle, an Illinois municipal
corporation (the “City”), (ii) DP Industrial, LLC, a Delaware limited liability
company (“Owner” or “DP Industrial”), (iii) Yesac Farms, L.P., a limited
partnership of Rochelle, Illinois (“Yesac”); (iv) Marie Annette Barth and Joyce
Stocking as Trustees under The Stocking Family Trust No. 4-96 under Trust
Agreement dated June 18, 1996 (collectively, “Barth”); and (v) the Noggle
Family Limited Partnership (“Noggle”)


 


Background


 


A.            The City, DP
Industrial and the Consenting Parties (as defined in the Annexation Agreement)
are entering into the Annexation Agreement relating to the Subject Property
contemporaneously herewith.


 


B.            The City, Illinois
River Energy, LLC, a Delaware limited liability company (“IRE”), Noggle, Henry
A. Knetsch, Jr., as Trustee Under a Certain Trust Agreement Dated July 21,
1988 (“Knetsch”), Carl Pohlad (“Pohlad”) and James D. Carmichael are entering
into an annexation agreement contemporaneously herewith (the “IRE Annexation
Agreement”).  The property subject to
the IRE Annexation Agreement shall be referred to herein as the “IRE Property”
and is more particularly described in the IRE Annexation Agreement.


 


C.            DP Industrial and
IRE have entered that certain Real Estate Exchange Agreement dated as of
April 29, 2003 pursuant to which DP Industrial agreed to transfer to IRE
its interest in an 81.1 acre portion of the Subject Property (the “Exchange
Property”), as described and depicted on Schedule 1-A and Schedule 1-B
attached hereto and made a part hereof, subject to certain


 


Rider to DP Industrial Annexation Agreement,


 


1

















 


conditions described in the Exchange Agreement, and IRE agreed to
transfer to DP Industrial its interest in the IRE Property subject to certain
conditions described in the Exchange Agreement.


 


D.            With this Rider the
City, DP Industrial and the Consenting Parties desire to describe the terms and
conditions of the Annexation Agreement that shall be deleted or modified and
the terms and conditions that shall be added to the Annexation Agreement if IRE
or an Affiliate of IRE (as hereinafter defined) acquires the Exchange Property.


 


Terms


 


NOW, THEREFORE, it is hereby agreed by and between the parties hereto,
as follows:


 


I.  MODIFICATIONS TO
ANNEXATION AGREEMENT UPON ACQUISITION OF THE EXCHANGE PROPERTY BY IRE OR AN
AFFILIATE OF IRE.  


 


If IRE
or an Affiliate of IRE acquires the Exchange Property, immediately upon
acquiring the Exchange Property the following modifications to the Annexation
Agreement shall be effective with respect to the Exchange Property without any
further action by the City or any other party to the provisions:


 


1.             References to DP Industrial and IRE.  If IRE or an Affiliate of IRE acquires the
Exchange Property, such entity shall promptly provide the City with notice of
such acquisition.  IRE shall be the
successor-in-interest to DP Industrial with respect to the Exchange Property
and, as such, the provisions of the Annexation Agreement relating to the
Exchange Property shall inure to the benefit of IRE.  As used herein, the term “IRE” shall mean IRE (as defined above)
or the Affiliate of IRE that acquires the Exchange Property, as the case may
be, and any entity or person that is the successor in title to IRE or the
Affiliate of IRE, as the case may be. 
The terms and provisions of this Rider shall not affect any portion of
the Subject Property other than the


 


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Exchange Property. 
Notwithstanding anything to the contrary contained within this
Agreement, nothing contained herein shall be deemed to obligate IRE to assume
DP Industrial’s monetary obligations described in the Annexation Agreement or
this Rider with respect to infrastructure improvements to water, sewer and
electrical facilities and the roads relating to the Exchange Property or the
Subject Property to the extent such costs are the obligations of DP Industrial
as set forth in the Annexation Agreement.


 


2.             Anticipated Development.  IRE anticipates that it will develop the
Exchange Property with an Ethanol Production Facility, or other industrial uses
related to ethanol production, including without limitation, CO2 Purification
and or Bottling, CO2 conversion to dry ice (separately and collectively
hereinafter sometimes referred to as a “CO2 Production Facility”), and any
other ethanol production, co-product or by-product, that becomes commercially
viable in the future (all such uses are collectively referred to herein as an
“Ethanol Production Facility”).  Solely
with respect to the Exchange Property, references in the Annexation Agreement
to DP Industrial’s intended use of the Subject Property for warehousing,
distribution, assembly, and light manufacturing (collectively, an “Industrial
Facility”) and similar references shall be deemed to refer to IRE’s intended
use of the Exchange Property as an Ethanol Production Facility.


 


3.             Zoning Classification.  Subject to Federal and State law, the City
represents and warrants that the I-2 zoning classification will permit the
operation of the Exchange Property for IRE’s anticipated use 24 hours per day,
seven days a week without any time limits or restrictions on such
operations.  The City acknowledges that
the development of the Exchange Property, which is located in a rural part of
the City in Dement Township, will or may, involve the sale or


 


3

















 


lease of the Exchange Property, or some part thereof,
from the Consenting Parties to IRE and possibly from IRE to third parties as or
for an Ethanol Production Facility, or other industrial uses related to ethanol
production, including without limitation, CO2 Production Facility and any other
ethanol production, co-product or by-product, that becomes commercially viable
in the future.  The City agrees to
permit any use of the Exchange Property that is permitted within an I-2 zoning
district.  Notwithstanding anything
contained in any City Ordinance or this Rider to the contrary, in order to
expedite the development of a part of the Exchange Property as a CO2 Production
Facility the City agrees that neither a lease of a part of the Exchange
Property for a CO2 Production Facility that is otherwise exempt from
subdivision requirements under the terms of the Illinois Plat Act or other
state law, nor the construction of buildings or improvements on land which is
so leased and which is otherwise exempt from subdivision requirements under the
terms of the Illinois Plat Act or other state law, shall require subdivision
approval from the City of Rochelle, including, without limiting the generality
of the foregoing any subdivision approvals or reviews under Titles 15, 16
and/or 17 of the Rochelle Municipal Code as now enacted, or as hereafter
amended or superseded by any future ordinance, rule or regulation.


 


4.             Development of Exchange Property.


 


(a)           IRE presently intends to
configure the Exchange Property in general conformity with the Preliminary Plan
as shown on Schedule 2 attached hereto and made a part hereof.  References to the “Preliminary Plan” or the
“Plan of Development” in the Annexation Agreement or this Rider shall be deemed
to refer to the Preliminary Plan attached to this Rider as Schedule 2.


 


4

















 


(b)           The legend on the Preliminary
Plan has or may have, certain details and specifications for some of the
buildings, equipment and improvements contemplated to be constructed by
IRE.  The City represents and warrants
that the buildings, equipment and improvements to be constructed by IRE as
detailed in the legend on the Preliminary Plan, are permitted under the
provisions of Rochelle Municipal Code including, without limitation, the I-2
zoning district regulations without any special use, conditional permit or
variance being required. 
Notwithstanding anything to the contrary contained within this Rider or
the Annexation Agreement, the City agrees that, pursuant to Title 17 Chapter
17.76 Section 17.76010B, the following items are exempt from the maximum
height limits of the Rochelle Municipal Code and as such no variance is or will
be required: thermal oxidizer; CO2 scrubber stack; grain storage/bins; grain
bin; dryer; feed bin; fermenter; beer well; distillation column and load out
flare.  The City further agrees, that
specific uses, locations and sizes of equipment, buildings and structures on Schedule 2
within the Exchange Property may be changed by IRE, provided that the changes
comply with the I-2 zoning district regulations. The City represents and
warrants that all I-2 zoning district regulations are set forth within Title 17
of the Rochelle Municipal Code and further that true and correct copies of the
current version of said Titles of the Rochelle Municipal Code have been
provided to IRE.  The City further
agrees, notwithstanding anything contained herein or in the Rochelle Municipal
Code to the contrary, that signs, fences, driveways, sidewalks, utilities,
overhead transmission lines, distribution lines and appurtenant facilities,
railroad tracks and appurtenant facilities, belonging to either the IRE or the City
are specifically permitted within the building setback rules or regulations of
the City. The parties understand that the Exchange Property may be developed in
phases, over time, depending on market conditions. The City acknowledges and
agrees that the grading and building permits for


 


5

















 


the Ethanol Production Facility improvements which
comply with the two preceding sentences can be obtained without the need for
planned development, special use, conditional use, site plan (except in
conjunction with customary City building permit reviews), appearance review,
subdivision or variation approvals, notwithstanding anything contained in City
ordinances to the contrary, provided that variation approvals shall be required
if relief is sought from the I-2 zoning district regulations.  IRE will, pursuant to the terms of the
Rochelle Municipal Code, submit a landscape improvement plan.  The City agrees not to unreasonably withhold
approval of the landscape improvement plan.


 


(c)           The City agrees to
expeditiously process demolition, grading, building permit and related permits
and approvals respecting the Ethanol Production Facility improvements on the
Exchange Property or which serve the Exchange Property (including without
limitation permits to perform work which are off-site within public highways,
roads and right-of-way) with said approval not to be unreasonably withheld or
unduly delayed, and utilize best efforts to approve the same within ten
business days after the date of application. 
In the event any application for City permits cannot be approved, the
City will state its reasons to IRE in writing within the aforesaid period and
allow IRE to resubmit its applications. 
In the event either Ogle County, the Illinois Department of
Transportation or other governmental entity having any authority in the
particular matter has issued a permit or has advised IRE that no permit is
required, respecting grading, storm-water drainage, storm-water compensatory
storage, storm-water detention retention, and other work and IRE has expended
sums of money in reliance on such permits or advice that no permit is required
at the time the Exchange Property is annexed into the City of Rochelle, work
authorized under the aforesaid County, State or other governmental entity


 


6

















 


permits or advice that no permit is required, may
proceed uninterrupted to its conclusion without the need for City permits or
conditional use approvals pertaining to these items.


 


(d)           The City agrees to initiate,
enact and adopt any ordinances and/or issue any permits granting a conditional
use of and for the Exchange Property which shall allow for the use of the
Exchange Property within an I-2 zoning district as an Ethanol Production
Facility, meaning and intending to include all related uses.


 


5.             Roads. 



 


(a)           The City shall
complete the road construction work described in Section 8 of the
Annexation Agreement in accordance with the terms and conditions of the Annexation
Agreement.  Notwithstanding anything to
the contrary contained in the Annexation Agreement or this Rider, subject to
events of Force Majeure as defined in the Annexation agreement, the City shall
cooperate with Ogle County as needed in connection with Ogle County’s road
construction from Hwy. 251 on the west to the south boundary of Ogle County
along Steward Road on or  before
March 1, 2004.


 


(b)           To
the extent permitted by law, except to the extent attributable to the negligent
acts or omissions of IRE, its directors, employees, agents and contractors the
City shall indemnify and hold harmless the Exchange Property and IRE, its and
their successors and assigns, from all claims, suits, threats of suit, loss,
costs (including attorneys fees and costs of suit), injury (including personal
injury), or damage or liens arising from the City’s construction of the roads
described in the Annexation Agreement with City’s performance of its
obligations under this paragraph to survive the expiration or termination of this
Rider.  Prior to commencing any
construction of such roads, the City will cause its general contractor or
contractors to provide


 


7

















 


IRE with evidence that there is in place commercially
reasonable insurance respecting the construction of such roads naming IRE as an
additional insured on such general liability policy or policies.  To the extent permitted by law, except to
the extent attributable to the negligent acts or omissions of the City, its
directors, employees, agents and contractors IRE shall indemnify and hold
harmless the City, its successors and assigns, from all claims, suits, threats
of suit, loss, costs (including attorneys fees and costs of suit), injury
(including personal injury), or damage or liens arising from IRE’s construction
of the Ethanol Production Facility with IRE’s performance of its obligations
under this paragraph to survive the expiration or termination of this Rider.
Prior to commencing any construction of the Ethanol Production Facility, IRE
will cause its general contractor or contractors to provide the City with
evidence that there is in place commercially reasonable insurance respecting
the construction of the Ethanol Production Facility naming the City as an
additional insured on such general liability policy or policies.


 


(c)           Notwithstanding
anything to the contrary contained in the Annexation Agreement, if IRE acquires
the Exchange Property, DP Industrial shall continue to be responsible for
paying the costs of the roadway improvements as described in Section 8 of
the Annexation Agreement and IRE shall not be responsible for any such costs.


 


6.             Utilities Specifications.


 


(a)           The City acknowledges that the
specifications relating to Water Facilities, Sewer Facilities and electrical
service described on Exhibits F-1, F-2, G-1, G-2, and I attached to the
Annexation Agreement shall be deemed to be apply to the Exchange Property.


 


(b)           The City shall perform the
work described in the Annexation Agreement relating to the Water Facilities,
the Sewer Facilities and the electrical facilities, and provide the services


 


8

















 


relating thereto, in accordance with the Annexation
Agreement and this Rider. To the extent permitted by law, except to the extent
attributable to the negligent acts or omissions of IRE, its directors,
employees, agents and contractors the City shall indemnify and hold harmless
the Exchange Property and IRE, its and their successors and assigns, from all
claims, suits, threats of suit, loss, costs (including attorneys fees and costs
of suit), injury (including personal injury), or damage or liens arising from
the City’s construction of the water and sewer lines (collectively, the
“Utilities System”) and the extension of the electrical service with City’s
performance of its obligations under this paragraph to survive the expiration
or termination of this Rider.  Prior to
commencing any construction of the Utilities System or the extension of the
electrical service, the City will cause its general contractor or contractors
to provide IRE with evidence that there is in place commercially reasonable
insurance respecting the construction of the Utilities System and the extension
of the electrical service naming IRE as an additional insured on such general
liability policy or policies.


 


(c)           The City shall complete the
performance of its obligations to provide utilities under this Rider and the
Annexation Agreement in a manner that does not cause any mechanics liens to be
imposed upon the Exchange Property. 
Once installed by the City provided herein, the City’s charges for
sewer, water, and electrical service to the Exchange Property shall be at least
as favorable as that provided other customers in a similar rate class.  To the extent permitted by law and except to
the extent attributable to the negligent acts or omissions of IRE, its
directors, employees, agents, or contractors, the City shall indemnify and hold
harmless the Exchange Property and IRE, its officers, directors, employees,
agents and its and their successors and assigns, from all claims, suits,
threats of suit, loss, cost (including attorney’s fees and costs of suit),
injury, personal injury, damage or liens arising from the City’s performance of
its


 


9

















 


obligations with respect to Utility Systems with said
obligation to survive the expiration or termination of this Rider.  Prior to commencing any construction with
respect to the Exchange Property pursuant to this Section or Sections 6, 7
or 10 of the Annexation Agreement, the City will cause its general contractor
or contractors to provide IRE with evidence that there is in place commercially
reasonable insurance respecting the construction on such general liability policy
or policies.


 


(d)           Once installed by the City at
the City’s cost as provided herein, the City’s charges for sewer, water, and
electrical service to the Exchange Property shall be at least as favorable as
that provided other customers in a similar rate class.


 


(e)           Notwithstanding anything to
the contrary contained in the Annexation Agreement, if IRE acquires the
Exchange Property, DP Industrial shall continue to be responsible for paying
the costs of the installation of the Water Facilities as described in
Section 7 of the Annexation Agreement and IRE shall not be responsible for
any such costs.


 


7.                                       Water Facilities.  


 


(a)           In connection with the City’s
Utilities Systems work described in the Annexation Agreement, the City shall
construct sufficient Water Facilities in order to bring water service to the
Exchange Property sufficient to service the Exchange Property in accordance
with City standards.  The City shall
complete the Water Facilities work described in the Annexation Agreement in
accordance with the following schedule: 
(i) subject to events of Force Majeure (as defined in the Annexation
Agreement) and notwithstanding anything to the contrary contained in the
Annexation Agreement or this Rider the Water Facilities shall be extended,
meaning and intending to include, initiating and completing construction of the
same, to the west boundary of


 


10

















 


the Barth Property on or before
December 15, 2003, and (ii) subject to events of Force Majeure (as defined in
the Annexation Agreement), the Water Facilities shall be extended, meaning and
intending to include, initiating and completing construction of the same, to
(A) the east boundary of the Barth Property and (B) the Ogle County line along
the east boundary of the Yesac Property on or before May 1, 2004.  Except for the connection charges set forth
on Exhibit F-3 attached to the Annexation Agreement which shall be in effect
for five years after the annexation of the Exchange Property, IRE shall be
permitted to connect to the water main of the Water Facilities on the Exchange
Property at no charge in locations as IRE selects in its sole discretion,
provided IRE’s improvement plans conform to all applicable City ordinances in
effect as of the date of the Annexation Agreement.


 


(b)           The City represents and
warrants that its water supply, as well as the Water Facilities currently in
place or to be constructed as provided for in the Annexation Agreement, are of
sufficient capacity to serve the current and anticipated development of the
Subject Property in the capacities shown on Exhibit F-1 to the
Annexation Agreement, and shall be available to the Exchange Property for such
anticipated usage, with no cost to IRE other than usual and customary fees,
charges and rates for supply based upon volumes consumed that are of general
applicability in the City.


 


(c)           At the written request of IRE,
the City shall install a second set of Water Facilities (the “Additional Water
Facilities”) integrated with the original Water Facilities for a redundant
supply of water to the Exchange Property. 
The specifications and cost sharing for the Additional Water Facilities
will be mutually agreed by the City and IRE at the time that IRE provides its
request to have the Additional Water Facilities installed by the City.


 


11

















 


(d)           Notwithstanding anything to
the contrary contained in the Annexation Agreement, if IRE acquires the
Exchange Property, DP Industrial shall continue to be responsible for paying
the costs of the installation of the Water Facilities as described in
Section 6 of the Annexation Agreement and IRE shall not be responsible for
any such costs.


 


8.                                       Sewer Facilities.  


 


(a)           In connection with the City’s
Utilities Systems work described in the Annexation Agreement, the City shall
construct sufficient Sewer Facilities in order to bring sewer service to the
Exchange Property sufficient to service the Exchange Property for IRE’s
anticipated use and in accordance with City standards.  The
City shall complete the Sewer Facilities work described in the Annexation
Agreement in accordance with the following schedule:  (i) subject to events of Force Majeure (as defined in the
Annexation Agreement) the Sewer Facilities shall be extended, meaning and
intending to include, initiating and completing construction of the same, to
the west boundary of the Barth Property on or before December 15, 2003,
and (ii) subject to events of Force Majeure (as defined in the Annexation
Agreement), the Sewer Facilities shall be extended, meaning and intending to
include, initiating and completing construction of the same, to (A) the
east boundary of the Barth Property and (B) the Ogle County line along the
east boundary of the Yesac Property on or before May 1, 2004.  Except for the connection charges set forth
on Exhibit F-3 attached to the Annexation Agreement and made a part
hereof which shall be in effect for five years after the annexation of the
Exchange Property, IRE shall be permitted to connect to the Sewer Facilities at
no cost in locations that IRE selects in its sole discretion, provided IRE’s
improvement plans conform to all applicable City ordinances in effect as of the
date of the Annexation Agreement.


 


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(b)           The City represents that its
sewer treatment facilities, as well as the improvements to be constructed as
provided for herein, are currently of sufficient capacity to serve the current
and anticipated development of the Exchange Property in the capacities shown on
Exhibit G-1 attached to the Annexation Agreement, with no additional
cost to IRE other than usual and customary fees, charges and rates of general
applicability in the City.


 


(c)           Notwithstanding anything to
the contrary contained in the Annexation Agreement, if IRE acquires the
Exchange Property, DP Industrial shall continue to be responsible for paying
the costs of the installation of the Sewer Facilities as described in
Section 7 of the Annexation Agreement and IRE shall not be responsible for
any such costs.


 


9.                                       Electrical Service Facilities. 


 


(a)           The City shall perform the
electrical service work described in Section 10 of the Annexation
Agreement.  The City shall complete the
electrical service work described in the Annexation Agreement in accordance
with the following schedule:  (i)
subject to events of Force Majeure (as defined in the Annexation Agreement) the
electrical service shall be extended, meaning and intending to include,
initiating and completing construction of the same, to the west boundary of the
Barth Property on or before December 15, 2003, and (ii) subject to events
of Force Majeure (as defined in the Annexation Agreement), the electrical
service shall be extended, meaning and intending to include, initiating and completing
construction of the same, to (A) the east boundary of the Barth Property
and (B) the Ogle County line along the east boundary of the Yesac Property
on or before June  1, 2004.  To the
extent that secondary transformers are needed to provide electrical service to
the Exchange Property or any individual structure on the Exchange Property, the
City shall promptly install such transformers at its sole


 


13

















 


expense.  IRE
shall be permitted to connect to the electrical facilities at no cost in
locations that IRE selects in its sole discretion, provided IRE’s improvement
plans conform to all applicable City ordinances in effect as of the date of
this Rider.  The City agrees to
distribute the electrical service throughout the Exchange Property per the
City’s current requirements, and, if requested in writing by IRE and if
technologically feasible and in compliance with applicable law, agrees to bury
the electrical lines on the Exchange Property at  the sole cost of IRE.


 


(b)           The City represents that its
electrical facilities are of sufficient capacity to serve the current and
anticipated development of the Exchange Property as set forth on Schedule 2
attached hereto, and shall be available to the Exchange Property for such
anticipated usage, with no additional cost to IRE other than usual and
customary fees, charges and rates of general applicability in the City.  The City agrees to provide service to the
Exchange Property based on the estimated capacities shown on Exhibit I attached
to the Annexation Agreement as and when such service is needed for the Exchange
Property.  The City agrees that any
electrical rates that are applicable to users similar to IRE with comparable
levels shall also be available to IRE.


 


(c)           The City
agrees that it shall not charge any rates for electricity at the Exchange
Property in excess of the lowest rate that it charges for similar users with
comparable volumes.


 


(d)           Notwithstanding
anything to the contrary contained in this Rider, IRE shall be and remain
responsible for the difference between the cost of an underground electric
distribution line and overhead electric distribution line on the Exchange
Property and the difference between the cost of an underground fibre optic line
and an overhead fibre optic line should IRE elect to install such an
underground distribution line or an underground fibre optic line on the
Exchange Property.


 


14

















 


(e)           To the extent
permitted by law, except to the extent attributable to the negligent acts or
omissions of the City, its directors, employees, agents and contractors IRE
shall indemnify and hold harmless the City, its successors and assigns, from
all claims, suits, threats of suit, loss, costs (including attorneys fees and
costs of suit), injury (including personal injury), or damage or liens arising
from IRE’s construction of the Ethanol Production Facility with IRE’s
performance of its obligations under this paragraph to survive the expiration
or termination of this Rider. Prior to commencing any construction of the
Ethanol Production Facility, IRE will cause its general contractor or
contractors to provide the City with evidence that there is in place
commercially reasonable insurance respecting the construction of the Ethanol
Production Facility naming the City as an additional insured on such general
liability policy or policies.


 


(f)            The City
shall complete the performance of its obligations to provide utilities under
this Section in a manner that does not cause any mechanics liens to be
imposed upon the Exchange Property. To the extent permitted by law and except
to the extent attributable to the negligent acts or omissions of IRE, its
directors, employees, agents, or contractors, the City shall indemnify and hold
harmless the Exchange Property and IRE, its officers, directors, employees,
agents and its and their successors and assigns, from all claims, suits,
threats of suit, loss, cost (including attorney’s fees and costs of suit),
injury, personal injury, damage or liens arising from the City’s performance of
its obligations under this Section with said obligation to survive the
expiration or termination of this Rider. Prior to commencing any construction
pursuant to this Section, the City will cause its general contractor or
contractors to provide IRE with evidence that there is in place commercially
reasonable insurance respecting the construction on such general liability
policy or policies.


 


15

















 


10.                                 Storm Water Retention / Detention.


 


(a)           IRE shall submit a storm water
management plan to the City in compliance with the proposed City Storm Water
Management Ordinance, which the City envisions adopting on or about
July 14, 2003.  The City represents
that a true and correct copy of the proposed City Storm Water Management
Ordinance has been delivered to IRE. The City agrees that it will promptly
review the Stormwater Management Plan and that its review thereof will not be
unreasonably withheld.   The City agrees
IRE shall not be required to provide for any compensatory storm water storage
by reason of the development of the Exchange Property as contemplated under
this Rider.  The City further agrees
that the IRE may, in the case of fire or other similar emergency, use the storm
water retention/detention as and for a supplemental supply of water.  The City acknowledges that the Exchange
Property shall be permitted to drain into the City/Brossman Right-of-Way and
then into Steward Creek as described in Section 9 of the Annexation
Agreement.  IRE has agreed to contribute
$36,000.00 to the City in connection with the City’s efforts to accomplish
certain regional drainage and offsite detention objectives (the “Detention Contribution”).  Owner shall pay the Detention Contribution
to the City promptly after City’s issuance of a building permit for the
construction of the Ethanol Production Facility.


 


(b)           IRE shall have no obligation
to pay any portion of the Detention Contribution described in Section 9(d)
of the Annexation Agreement and such obligation shall continue to be DP
Industrial’s responsibility.


 


(c)           The City further agrees to
provide for, and maintain, at the City’s sole cost and expense, a reasonably
sufficient lawful storm water retention/detention outlet for the release of
IRE’s storm water retention/detention basins.


 


16

















 


11.           Fiber Optic Line Installation.  In connection with the annexation and
development of the Exchange Property, the City shall construct sufficient Fiber
Facilities in accordance with Section 11 of the Annexation Agreement in
order to bring fiber optic service to the Exchange Property sufficient to
service the Exchange Property for its anticipated use and in accordance with
City standards.  In addition, the City,
at it sole cost, shall install the Fiber Facilities on the Exchange Property in
order to distribute such facilities to the improvements on the Exchange
Property.  Subject to events of Force
Majeure (as defined in the Annexation Agreement), the City shall extend, at the
City’s cost, the Fiber Facilities to the Exchange Property on or before
July 1, 2004.  Neither DP
Industrial nor IRE shall be required to contribute to the cost of such extension.  IRE shall be permitted to connect to the
Fiber Facilities at the standard connection fee in locations that IRE select in
its sole discretion, provided IRE’s improvement plans conform to all applicable
City ordinances in effect as of the date of this Rider. 


 


12.           Lead Track.  Section 12 of the Annexation Agreement is hereby deleted in
its entirety and replaced with the following:


 


(a)           Existing Lead Track.   The City of Rochelle owns certain
industrial trackage (the “City Lead Track”) over which railroad cars operate
and which connects to trackage owned and operated by the Burlington
Northern/Santa Fe Railroad Company and the Union Pacific Railroad Company
(“UP”) (collectively the “Connecting Carriers”).


 


(b)           Extension. The City shall, at
the City’s sole cost and expense, construct an extension of the City Lead Track
from its current termination point north of the north right of way line of
Illinois Tollway Authority Interstate Highway 88 within the right-of-way shown
on the Preliminary Plan of Development and/or the Rail Drawings and identified
thereon as “City Lead Track”.  The
initial extension of the City Lead Track will extend south to a point that is
2160 feet south of the north Lee County line (“Phase 1 of the City Lead Track”)
and will be completed, subject to events of Force Majeure, on or before
June 1, 2004.   The second
extension of the City Lead Track will extend to a point that is


 


17

















 


2160 feet south of the termination point of Phase 1 of
the City lead Track (“Phase 2 of the City Lead Track”).  The City’s work as to Phase 1 of the City
Lead Track described in this Section shall be described as the “City’s
Rail Work”.  The scope of the City’s
Rail Work is also described on Exhibit “O” attached hereto and made a part
hereof (the “Rail Drawings”).   The City
represents that the City has requested donations of certain rail equipment from
others, including switches.  To the
extent the City receives a sufficient number of switch to install the
switch(es) shown on Exhibit O, the City shall install such switch(es) at IRE’s
request and, in such event, IRE shall pay the City $10,000 per switch plus
reasonable installation costs.  If the
City does not receive a sufficient number of switch(es), or if IRE elects not
to acquire the City’s switch(es), IRE shall be responsible for acquiring the
remaining required switch(es), if any, and upon such acquisition the City shall
install such switch(es), at IRE’s expense. 
Notwithstanding the provisions of the preceding sentence, as part of the
City’s Rail Work the City shall install switch(es) as set forth on the Rail
Drawings provided, however, switch(es) that serve IRE’s trackage shall be
installed by the City at IRE’s expense. Upon completion of plans and
specifications for the City Rail Work, the City shall deliver such plans and
specifications to IRE, for IRE’s review and approval of the switch(es) set
forth therein.  The City agrees not to
impose any fee, tax, assessment or charge of any kind or type as against IRE that
is connected with, or in any way related to: (i) IRE’s right to connect to,
(ii) IRE’s right to use, or (iii) IRE’s use of, the City Lead Track.  The terms of this Article 12 are
expressly made binding upon the successors, assigns and transferees of the City
whether such successors receive their interest in the City Lead Track by sale,
lease, operating agreement or other transfer of any right, title or interest in
or to the City Lead Track.  The City
agrees to execute a recordable memorandum sufficient to give record notice of
the agreements set forth in this Section.


 


(c).          The City and IRE will, or have,
entered into an Industrial Track Agreement, containing customary terms,
provisions and conditions that are reasonably acceptable to IRE (“Rail
Agreement”).  Among other things, the Track
Agreement will permit IRE, its successors and assigns, and their respective
tenants and licensees, to send and receive


 


18

















 


rail cars utilizing the City Lead Track.  During the term of this Agreement, so long
as Class 1 railroads continue to absorb the cost of switching fees, the City
shall not charge IRE, its successors and assigns, or their respective tenants
and licensees for such service.  


 


(d)           IRE has represented to the City that
it expects to ship approximately thirteen (13) railroad cars per day over the
City Lead Track upon completion of Phase I of the Ethanol Production Facility,
and approximately twenty-five (25) cars per day upon completion of Phase II of
the Ethanol Production Facility. The City has represented to IRE that the City
receives income from the use of the City Lead Track at the current rate of $42
per car. Accordingly, the parties have projected the anticipated revenue to the
City from IRE’s use of the City Lead Track to be $200,000.00 per year during
Phase I of the Ethanol Production Facility, and an additional similar amount
during Phase II of the Ethanol Production Facility. Until completion of Phase
II of the Ethanol Production Facility, the income to the City resulting from
use of the City Lead Track by the Ethanol Production Facility shall be retained
by the City. After completion of Phase II of the Ethanol Production Facility,
and until the City has recaptured all of its costs for the construction of
Phase 2 of the City Lead Track (including without limitation all indebtedness
and interest thereon) the income to the City resulting from use of the City
Lead Track by the Ethanol Production Facility shall be allocated on a yearly
basis as follows: (i) all income from the first 4589 rail cars used per year
(i.e., 13 cars per day for 353 days) shall be deemed attributable to Phase I of
the Ethanol Production Facility and shall be retained by the City (“Phase 1
Income”); (ii) all additional income from rail cars beyond Phase I Income at
the rate of $42.00 per car, shall be deemed to be attributable to Phase II of
the Ethanol Production Facility and shall be applied to City’s indebtedness for
the construction of Phase 2 of the City Lead Track (“Phase 2 Income”). After
City has recaptured all of its costs for the construction of Phase 2 of the
City Lead Track (including without limitation all indebtedness and interest
thereon) the income to the City resulting from use of the City Lead Track by
the Ethanol Production Facility shall be retained by the City.


 


(e)           In the event IRE decides to build
Phase II of the Ethanol Production Facility the City agrees to take all actions
that are reasonably necessary to design and construct Phase 2 of the City Lead
Track, subject to events of Force Majeure, on or before the date (the
“Construction Date”) that is twelve (12) months after the date IRE both: (i)
gives the City written notice that it


 


19

















 


will construct Phase II of the Ethanol Production
Facility; and (ii) deposits with the City One Hundred Thousand Dollars
($100,000.00) (the “Engineering Deposit”). 
The City’s obligation to construct Phase 2 of the City Lead Track
includes, but is not limited to, acquisition of any necessary real estate, the
acquisition of all necessary governmental permits, the development of all
necessary designs and plans for Phase 2 of the City Lead Track (including
bridges) and the physical construction of Phase 2 of the City Lead Track,
including any necessary bridges and switches (collectively the “Construction of
Phase 2 of the City Lead Track”). In the event the City, through no fault of
its own, is unable to obtain all governmental permits or is unable to make such
connections to the Class 1 railroad mainlines as are necessary to construct
Phase 2 of the City Lead Track by the Construction Date, the Construction Date
shall be extended by the amount of time so required to obtain the necessary
governmental permit or permits or the connections to the Class 1 railroad
mainlines.  Upon completion of plans and
specifications for Phase 2 of the City Lead Track, the City shall deliver such
plans and specifications to IRE, and IRE shall have the right to review and
approve the same, with such review and approval not to be unreasonably delayed
or withheld.  Except as hereinafter
expressly provided, the Construction of Phase 2 of the City Lead Track shall be
at the City’s sole cost and expense (the “Phase 2 Costs”).  On the first day of the first full calendar
year following the date the City has completed the Construction of Phase 2 of
the City Lead Track (the “First Year”), and on the same day of each succeeding
calendar year, provided that, that year’s Phase 2 Income is less than Two
Hundred Thousand ($200,000.00) Dollars, IRE agrees to pay to the City the
difference between that year’s Phase 2 Income and Two Hundred Thousand Dollars
($200,000.00) (the “Shortfall”) until the City has recaptured all Phase 2 Costs
less the Engineering Deposit, meaning and intending to include any
indebtedness, and the interest thereon, incurred by the City in the
Construction of Phase 2 of the City Lead Track.   Notwithstanding anything to the contrary contained in the
Annexation Agreement or this Rider, in the event Phase 2 Income exceeds Two
Hundred Thousand Dollars ($200,000.00) during the First Year, and/or any
calendar year thereafter, (the “Excess Income”), the Excess Income shall
accumulate and shall be credited against a future Shortfall, or Shortfalls,
owed by IRE to the City, if any. Notwithstanding anything to the contrary
contained 


 


20

















 


in the Annexation Agreement or this Rider, the City
agrees to use and apply the Phase 2 Income, the Shortfall payments and the
Excess Income, if any to the Phase 2 Costs until the Phase 2 Costs are
completely paid.  Notwithstanding
anything to the contrary contained in the Annexation Agreement or this Rider,
the City agrees that the cost of any real estate that may be required for Phase
2 of the City Lead Track shall not be included in the Phase 2 Costs.  In addition, in the event the City extends
the City Lead Track, prior to IRE’s written notice and Engineering Deposit as
set forth herein, for reasons other than Phase II of the Ethanol Production
Facility, IRE shall not have any obligation to pay for all or any part of any
such extension.  Notwithstanding anything to the contrary contained in
the preceding sentence, or this Rider, the Phase 2 Costs shall not include, or
be deemed to include, any costs or expenses that are not necessary and directly
related to the construction of Phase 2 of the City Lead Track for the benefit
of, and the construction of, Phase II of the Ethanol Production Facility.  Notwithstanding anything to the contrary
contained in the Annexation Agreement or this Rider, the City will have no
obligation to commence construction of Phase 2 of the City Lead Track until IRE
has commenced actual construction of Phase II of the Ethanol Production
Facility.


 


(f)            Indemnities; Insurance. The
City shall complete the performance of its obligations to extend the aforesaid
City Rail Line under this Section in a manner that does not cause any
mechanics liens to be imposed upon the Exchange Property. To the extent
permitted by law and except to the extent attributable to the negligent acts or
omissions of IRE, its directors, employees, agents, or contractors, the City
shall indemnify and hold harmless the Exchange Property and IRE, its officers,
directors, employees, agents and its and their successors and assigns, from all
claims, suits, threats of suit, loss, cost (including attorney’s fees and costs
of suit), injury, personal injury, damage or liens arising from the City’s
performance of its obligations under this Section with said obligation to
survive the expiration or termination of the Annexation Agreement.  Prior to commencing any construction
pursuant to this Section, the City will cause its general contractor or
contractors to provide IRE with evidence that there is in place commercially
reasonable insurance respecting the construction on such general liability
policy or policies.  Once extended by
the City at the City’s cost as provided herein, the City’s shall not charge IRE
for any of IRE’s use or uses, from time to time, of the City Rail Line.


 


21

















 


13.           Performance of Work.  Section 12(b) of the Annexation
Agreement shall not apply to the Exchange Property and IRE shall not be
entitled to exercise the rights set forth in Section 12(b).


 


14.           Infrastructure.  Except
as expressly set forth in this Rider or in the Annexation Agreement, IRE shall
not be required to construct any on-site or off-site public infrastructure or
perform any other construction, maintenance, repairs, replacements or
alterations in connection with the development and use of the Exchange
Property.  The City represents and
warrants that it has no knowledge of, or reason to know of, any on-site or
off-site City infrastructure improvements or the need for repairs, replacements
or alterations to any City infrastructure improvements which must or should be
made in connection with the development and use of the Exchange Property as
contemplated under this Rider, except as is expressly set forth in this
Rider.  If necessary in conjunction with
the City’s performance of its obligations under this Rider, IRE agrees to
expedite any necessary IRE reviews of proposed City construction activity on or
about IRE’s Property and to waive any IRE-imposed review fees.  In conjunction with the City’s performance
of its obligations under this Rider, the City agrees to improve its
infrastructure, from time to time, so that the City shall maintain an
infrastructure with sufficient capacity to serve the needs of the Ethanol
Production Facility from time to time, including, without limitation, all
infrastructure reasonably necessary so that the City shall be able to provide
sufficient water, sewer, electric and rail service to the Ethanol Production
Facility.  More specifically, the City
agrees that it will maintain or improve its infrastructure, from time to time,
such that the City will at all times, have the capability of supplying not less
than one million two


 


22

















 


hundred and fifty eight thousand eight hundred and
fifty (1,258,850) gallons of water per day water, of the same quality that the
City is currently capable of providing, to the Ethanol Production
Facility.  The City also agrees that it
will maintain or improve its City Rail Line, from time to time, such that it
will, at all reasonable times, have the capability of handling IRE’s
contemplated future shipment of 25 railroad cars each day of every calendar
year hereafter without undue delay or undue expense. The terms of the preceding
sentence shall be deemed to include an agreement on the part of the City to
provide a sufficient amount of rail siding and switching capability, from time
to time, such that the City Rail Line can, at all times, be used by IRE for
aforesaid quantity of shipments without undue delay by reason of the use of the
City Rail Line by others whether such use by others now exists or arises in the
future. In no event shall the City’s obligations hereunder require the City to
maintain water capacity in excess of 1,258,850 gallons per day, or rail capacity
in excess of  thirteen (1) railroad cars
per day for Phase I of the Ethanol Production facility and twenty-five (25)
railroad cars per day for Phase II of the Ethanol Production facility.


 


15.           Recapture.  Section 17 of the Annexation Agreement shall not apply to
the Exchange Property and IRE shall not be entitled to (i) any recapture fees
or (ii) exercise any rights set forth in Section 17.


 


16.           Fees.  The City
hereby represents to IRE, based upon the information and drawings provided by
IRE to the City Building official, that Schedule 4, attached hereto
and made a part hereof, consists of a reasonably accurate list of all the
City’s taxes, charges and fees required to be paid by IRE to the City in
connection with the Annexation Agreement, including this Rider, meaning and
intending to include the construction of the Ethanol Production Facility


 


23

















 


and the costs thereof.  IRE acknowledges that there are, or may be, fees or other costs
that are required to be paid by IRE to the City in connection with the
construction of the Ethanol Prodcution Facility that are not included in
Schedule 4 and the City represents that it has given IRE schedules of the
major fees or costs.  IRE acknowledges
that there are, or may be fees for certain professionals, including engineering
fees or other consultant fees (“Outside Professionals”), that may be engaged by
the City for reviewing IRE’s plans (including the storm-water management plan)
drawings and specifications that are not listed in Schedule 4 and
that the City will seek reimbursement for the cost thereof from the IRE.
Notwithstanding anything contained to the contrary within this Rider, the City
represents, warrants and agrees that the City has not, and shall not enter into
any agreement with any third party, whereby the Exchange Property, or any part
thereof (meaning and intending to include the Ethanol Production Facility) is
made subject to the terms of any recapture agreement or other instrument
designed to, or including any provisions providing for, the recapture of costs
or expenses relating to any public improvement of any kind or type.  The City further represents and warrants
that the Exchange Property is not, and shall not, be made subject to any City
ordinance, special assessment or other City rule that is designed to, or
includes any provisions providing for, the recapture of costs or expenses
relating to any public improvement of any kind or type.


 


17.           Property Tax Abatement. 
Section 19 of the Annexation Agreement is hereby deleted in its
entirety and replace with the following:


 


“The
City agrees to cause the Exchange Property to enjoy the standard tax abatement
plan provided by the City to other industries which plan is described on Schedule 5,
attached hereto and made a part hereof. 
The City further agrees to work with IRE and utilize its


 


24

















 


best efforts to obtain approval of the abatements
described on Schedule 5 from other taxing districts not already a
part of the plan, if any.  The tax
abatement plan shall commence upon the first day of the first full calendar
year following completion of the Ethanol Production Facility and the
commencement of Ethanol Production. The provisions of the preceding sentence are
intended to permit IRE to receive the full benefit of the abatement by
deferring any abatement until the first day of the first calendar year
following completion of the Ethanol Production Facility.”


 


18.           Concurrent Annexation. 
The City represents and warrants that the City is the sole owner of the
real estate described on Schedule 6 attached hereto (the “City
Property”).  Concurrently with the
annexation of the IRE Land (as defined in the Annexation Agreement) the City
agrees to annex the City Property.


 


19.           Conflicts.  In the
event of a conflict between the Annexation Agreement and this Rider, the terms
and provisions of this Rider shall prevail.


 


20.           Full Force and Effect. 
Except as modified by this Rider, the Annexation Agreement shall remain
in full force and effect.


 


21.           Affiliate
of IRE.  As used in this
Rider, an “Affiliate of IRE” shall mean (1) any entity resulting from a merger
or consolidation with IRE or any organization purchasing substantially all of
IRE’s assets, (2) any subsidiary, affiliate or parent of IRE, (3) any entity
controlling, controlled by or under common control with IRE, (4) any entity
related to IRE, and (5) any joint venture partner of IRE.


 


25

















 


22.           Recapture.  
Notwithstanding anything to the contrary contained within: (i) the IRE
Annexation Agreement, including any Rider thereto; (ii) the Annexation
Agreement, including this Rider; (iii) any recapture agreement; (iv) or any
statute, ordinance, regulation or other rule of law, neither the City nor DP
Industrial, including, without limitation, their successors, affiliates or
assigns, shall have the right to recapture any costs for any of the real
estate, easements or infrastructure improvements contemplated to be acquired
and/or made under the above mentioned annexation agreements, including, without
limitation, the construction, improvement or extension of water facilities,
sewer facilities, electric, fiber optics, roads or railroad lines from any
current or future owner or lessee of all or any part of the Yesac Property or
the Exchange Property, or the Yesac Property or the Exchange Property
themselves.  The City expressly waives
the provisions of any ordinance or agreement, whether now or hereafter
existing, which gives, or purports to give, the City any right to recapture any
one or more of the costs mentioned in the preceding sentence.


 


23.           Dedication and Easements. 
Simultaneous with IRE’s acquisition of the Exchange Property, IRE shall
dedicate and convey to Ogle County the 40-foot right-of-way described in
Section 8(c) of the Annexation Agreement. 
In addition, simultaneous with IRE’s acquisition of the Subject
Property, IRE shall grant the easements for the Utility Easement Area and the
Construction Easement Area on the Exchange Property, as described in
Section 14(b) of the Annexation Agreement.


 


24.           Contingencies.     Subject
to IRE’s successful completion of its public offering for the sale of stock,
IRE agrees to begin construction of the Ethanol Production Facility on or before
February 1, 2004. Subject to the provisions of Article XXIII of the
IRE Annexation


 


26

















 


Agreement, notwithstanding anything to the contrary
contained herein, City’s obligations set forth in this Rider shall be
contingent upon Owner building an Ethanol Facility on the Exchange Property,
with construction of the same commencing on or before February 1, 2004,
failing which IRE or the City may declare this Rider terminated upon written
notice to the other party. Upon termination as set forth in the preceding
sentence, neither party shall have any further obligations to the other party
under this Agreement, except that the following obligations shall survive such
termination: (i) IRE’s obligation to convey and/or dedicate the 40’
right-of-way on Steward Road and (ii) IRE’s obligation to grant the easements
for the Utility Easement Area and the Construction Easement Area on the
Exchange Property as described in Section 23 of this Rider.  Nothing contained in this Section shall
affect the City’s obligations to DP Industrial under the Annexation
Agreement.  


 


II.  MISCELLANEOUS
PROVISIONS


 


The
following terms and provisions shall become effective immediately upon the full
execution and delivery of the Annexation Agreement and this Rider:


 


25.           Third Party Beneficiary.  IRE shall be deemed to be a third party
beneficiary to the Annexation Agreement and this Rider.


 


26.           Amendment.  The Annexation Agreement, this Rider and all exhibits and
schedules attached to the Annexation Agreement and the Rider set forth all the
promises, inducements, agreements, conditions and understandings between the
parties relative to the subject matter thereof, and there are no promises,
inducements, agreements, conditions or understandings, either oral or written,
express or implied, between them other than are herein set forth.  Except as otherwise provided herein, no
subsequent alteration, amendment, change or


 


27

















 


addition to the Annexation Agreement or this Rider
shall be binding upon the parties hereto unless authorized in accordance with
law and reduced in writing as signed by them. 
Any amendment to the Annexation Agreement or this Rider shall be subject
to IRE’s review and approval (until the Exchange Agreement terminates, at which
time neither IRE’s review nor approval shall be required).


 


27.           Assignability. 
Prior to the annexation of the Exchange Property to the City, DP
Industrial shall have the right, without the City’s or the Consenting Parties’
approval, to assign all of its obligations, rights and responsibilities under
the Annexation Agreement and this Rider to IRE or an Affiliate of IRE in
connection with an assignment of the purchase option agreements described in
the recitals of the Annexation Agreement.


 


28.           Waiver.  No waiver
of any condition or provision of the Annexation Agreement or this Rider by any
party shall be valid unless in writing signed by such party.  No such waiver shall be deemed or construed
as a waiver of any other or similar provision or of any future event, act, or
default.


 


29.           Computation of Time. 
In the computation of any period of time provided for in the Annexation
Agreement or this Rider or by law, the day of the act or event from which such
period of time runs shall be excluded, and the last day of such period shall be
included, unless it is a Saturday, Sunday, or legal holiday, in which case the
period shall be deemed to run until the end of the next business day.


 


30.           Headings.  Headings
of articles and sections herein are for convenience of reference only and shall
not be construed as part of the Annexation Agreement or this Rider.


 


28

















 


31.           Illinois Law.  The
Annexation Agreement and this Rider shall be governed by and construed in
accordance with the laws of the State of Illinois.


 


32.           Fees.  In the event
any dispute arises hereunder, and litigation or arbitration proceedings are
commenced, the prevailing party shall be entitled to recover from the other
party all costs and expenses incurred in connection with such proceedings,
including but not limited to reasonable attorneys’ fees and costs.


 


33.           No Interpretation Against the Drafter.  In no event shall the Annexation Agreement
or this Rider be construed more strongly against any one person solely because
such person or its representative acted as draftsman hereof, it being
acknowledged by the parties hereto that both have been represented by competent
legal counsel, that the Annexation Agreement and this Rider have been subject
to substantial negotiation, and that all parties have contributed substantially
to the preparation of the Annexation Agreement and this Rider.


 


34.           Severability.  If
any provision of the Annexation Agreement or this Rider is held invalid by a
court of competent jurisdiction, or in the event such court shall determine
that the City does not have the power to perform any such provision, such
provision shall be deemed to be excised here from and the invalidity thereof
shall not affect any of the other provisions contained herein, and such
judgment or decree shall relieve the respective party from performance under
such invalid provision of the Annexation Agreement or this Rider.


 


35.           Counterparts.  The
Annexation Agreement and this Rider may be executed in two or more
counterparts, each of which taken together shall constitute one and the same
instrument.


 


29

















 


36.           Definitions.   All
terms not defined in this Rider shall have the meanings ascribed to such terms
in the Annexation Agreement.


 


37.           Consenting
Parties.  Notwithstanding
anything to the contrary contained herein, the parties hereto acknowledge and
agree that: (i) the Consenting Parties shall have no obligations whatsoever
with respect to this Rider, and  (ii) no
portion of the Subject Property shall be burdened in any way whatsoever by this
Rider unless and until IRE purchases the Exchange Property at which time the
Exchange Property purchased by IRE shall be subject to the terms and conditions
of this Rider.  


 


[Signature Page Follows]


 


30

















 


IN WITNESS WHEREOF, the parties hereto have executed this Rider as of
the date and year of the Annexation Agreement.


 


	
   

  	
  CITY OF ROCHELLE

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   
  /s/ Chet Olson

  
	
   

  	
  Name:

  	
   
  Chet Olson

  
	
   

  	
  Its:

  	
   
  Mayor

  
	
   

  	
  Date:

  	
   
  7-29-03

  
							



 


31

















 


	
   

  	
  DP INDUSTRIAL, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  DP INDUSTRIAL, LLC

  
	
   

  	
  a Delaware limited liability company

  
	
   

  	
   

  
	
   

  	
  By:  DP
  Venture Co. LLC,

  
	
   

  	
  a Delaware limited liability company

  
	
   

  	
  Its:  Manager

  
	
   

  	
   

  
	
   

  	
  By:  DP
  Promote Co. LLC,

  
	
   

  	
  a Delaware limited liability company

  
	
   

  	
  Its: 
  Managing Member

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Michael
  Dermody

  
	
   

  	
  Name:

  	
  Michael Dermody

  
	
   

  	
  Title:

  	
  Managing Member

  
				



 


32

















 


	
   

  	
  YESAC FARMS, L.P.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   
  /s/ Larry F. Casey

  
	
   

  	
  Name:

  	
   
  Larry F. Casey

  
	
   

  	
  Its:

  	
   

  
	
   

  	
  Date:

  	
   
  7-14-03

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   
  /s/ Patricia E. Casey

  
	
   

  	
  Name:

  	
   
  Patricia E. Casey

  
	
   

  	
  Its:

  	
   

  
	
   

  	
  Date:

  	
   
  7-14-03

  
							



 


33

















 


	
   

  	
  MARIE BARTH

  
	
   

  	
   

  
	
   

  	
   
  /s/  Marie Barth

  
	
   

  	
   

  
	
   

  	
  Date:

  	
   
  7-14-03

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  JOYCE STOCKING AS TRUSTEES UNDER THE
  STOCKING FAMILY TRUST NO. 4-96 UNDER TRUST AGREEMENT DATED JUNE 18, 1996

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   
  /s/ Joyce Stocking

  
	
   

  	
  Name:

  	
   
  Joyce Stocking

  
	
   

  	
  Its:

  	
   
  Owner & Trustee

  
	
   

  	
  Date:

  	
   
  7-14-03

  
	
   

  	
   

  
	
   

  	
  NOGGLE FAMILY LIMITED PARTNERSHIP

  
	
   

  	
   

  
	
   

  	
  By:

  	
   
  /s/ Robert O. Nogle

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Its:

  	
   
  General Partner

  
	
   

  	
  Date:

  	
   
  7-29-03

  
	
   

  	
   

  
								



 


34

















 


	
  STATE OF

  	
  Illinois

  	
   

  
	
   

  	
   

  	
  SS

  
	
  COUNTY OF

  	
  Ogle

  	
   

  



 


I, the
undersigned, a Notary Public in and for the County and State Aforesaid, do
hereby certify that     Chet Olson   personally known to me to be   
Mayor    of THE CITY OF ROCHELLE, ILLINOIS, and
personally known to me to be the same person whose name is subscribed to the
foregoing instrument, appeared before me this day in person and acknowledged
that he signed and delivered such instrument, in his capacity as    Mayor   
of THE CITY OF ROCHELLE, ILLINOIS,
as his free and voluntary act and as the free and voluntary act and deed of
such corporation, for the uses and purposes therein set forth.


 


Given under my
hand and official seal this   29    day of  
July   , 2003.


 


	
   

  	
     /s/
  Alan H. Cooper

  
	
   

  	
  Notary
  Public

  



 


[seal]


 


	
  STATE OF

  	
  Nevada

  	
   

  
	
   

  	
   

  	
  SS

  
	
  COUNTY OF

  	
  Washoe

  	
   

  



 


I, the
undersigned, a Notary Public in and for the County and State Aforesaid, do
hereby certify that   Michael C.
Dermody   personally known to me to be   Managing Member   of DP INDUSTRIAL, LLC,
and personally known to me to be the same person whose name is subscribed to
the foregoing instrument, appeared before me this day in person and
acknowledged that he signed and delivered such instrument, in his capacity
as   Managing Member   of such corporation, as his free and
voluntary act and as the free and voluntary act and deed of such corporation,
for the uses and purposes therein set forth.


 


Given under my
hand and official seal this   25th   day of  
July  , 2003.


 


	
   

  	
     /s/ Sharon R. Mills

  
	
   

  	
  Notary
  Public

  



 


[seal]


 


35

















 


	
  STATE OF

  	
  Illinois

  	
   

  
	
   

  	
   

  	
  SS

  
	
  COUNTY OF

  	
  Ogle

  	
   

  



 


I, the
undersigned, a Notary Public in and for the County and State Aforesaid, do
hereby certify that LARRY F. CASEY
personally known to me to be partner in YESAC
FARMS, L.P., and personally known to me to be the same person whose
name is subscribed to the foregoing instrument, appeared before me this day in
person and acknowledged that he signed and delivered such instrument, in his
capacity as partner of such limited partnership, as his free and voluntary act
and as the free and voluntary act and deed of such limited partnership, for the
uses and purposes therein set forth.


 


Given under my hand and official seal this   14   day of   July  , 2003.


 


	
   

  	
     /s/ Charles P. Cole, Jr.

  
	
   

  	
  Notary
  Public

  



 


[seal]


 


36

















 


	
  STATE OF

  	
  Illinois

  	
   

  
	
   

  	
   

  	
  SS

  
	
  COUNTY OF

  	
  Ogle

  	
   

  



 


 


I, the undersigned, a Notary Public in and
for the County and State Aforesaid, do hereby certify that PATRICIA E. CASEY personally known to me to
be partner in YESAC FARMS, L.P.,
and personally known to me to be the same person whose name is subscribed to
the foregoing instrument, appeared before me this day in person and
acknowledged that she signed and delivered such instrument, in her capacity as
partner of such limited partnership, as her free and voluntary act and as the
free and voluntary act and deed of such limited partnership, for the uses and
purposes therein set forth.


 


Given under my hand and official seal this   14   day of   July  , 2003.


 


	
   

  	
    
  /s/ Charles P. Cole, Jr.

  
	
   

  	
  Notary
  Public

  



 


[seal]


 


37

















 


	
  STATE OF

  	
  Illinois

  	
   

  
	
   

  	
   

  	
  SS

  
	
  COUNTY OF

  	
  Ogle

  	
   

  



 


I, the
undersigned, a Notary Public in and for the County and State Aforesaid, do
hereby certify that JOYCE M. STOCKING
personally known to me to be TRUSTEE UNDER
THE PROVISIONS OF A TRUST AGREEMENT DATED THE 18TH DAY OF JUNE, 1996 AND KNOWN
AS THE STOCKING FAMILY TRUST NO. 4-96, and personally known to me to
be the same person whose name is subscribed to the foregoing instrument,
appeared before me this day in person and acknowledged that she signed and
delivered such instrument, in her capacity as Trustee of such Trust, as her
free and voluntary act and as the free and voluntary act and deed of such
Trust, for the uses and purposes therein set forth.


 


Given under my hand and official seal this   14   day of   July  , 2003.


 


	
   

  	
     /s/ Bonnie J. Moore

  
	
   

  	
  Notary
  Public

  



 


[seal]


 


	
  STATE OF

  	
  Illinois

  	
   

  
	
   

  	
   

  	
  SS

  
	
  COUNTY OF

  	
  Ogle

  	
   

  



 


I, the
undersigned, a Notary Public in and for the County and State Aforesaid, do
hereby certify that MARIE ANNETTE BARTH,
personally known to me to be the same person whose name is subscribed to the
foregoing instrument, appeared before me this day in person and acknowledged
that she signed and delivered such instrument, as her free and voluntary act,
for the uses and purposes therein set forth.


 


	
   

  	
     /s/ Bonnie J. Moore

  
	
   

  	
  Notary
  Public

  



 


[seal]


 


38

















 


	
  STATE OF

  	
  Illinois

  	
   

  
	
   

  	
   

  	
  SS

  
	
  COUNTY OF

  	
  Kane

  	
   

  



 


I, the undersigned,
a Notary Public in and for the County and State Aforesaid, do hereby certify
that   Robert Noggle   is personally known to me to be   General Partner   of THE NOGGLE FAMILY LIMITED
PARTNERSHIP, and personally known to me to be the same person whose
name is subscribed to the foregoing instrument, appeared before me this day in
person and acknowledged that he/she signed and delivered such instrument, in
his/her capacity as   General Partner   of THE NOGGLE FAMILY LIMITED
PARTNERSHIP, as his/her free and voluntary act and as the free and
voluntary act and deed of THE NOGGLE FAMILY
LIMITED PARTNERSHIP, for the uses and purposes therein set forth.


 


	
   

  	
      /s/ David E. Do

  
	
   

  	
  Notary
  Public

  



 


[seal]


 


39

















 


Schedules to Rider


 


Schedule 1-A:       Description
of Exchange Property


 


Schedule 1-B:        Depiction
of Exchange Property


 


Schedule 2:            Preliminary
Plan


 


Schedule 3:            Rail
Drawings


 


Schedule 4:            Fees


 


Schedule 5:            Property
Tax Abatement


 


Schedule 6:            City
Property


 


40

















 


SCHEDULE 1-A:  DESCRIPTION OF EXCHANGE PROPERTY


 


THAT PART OF THE SOUTHEAST QUARTER OF SECTION 31 AND PART OF THE
SOUTHWEST QUARTER OF SECTION 32 , ALL IN TOWNSHIP 40 NORTH, RANGE 2 EAST
OF THE THIRD PRINCIPAL MERIDIAN, COUNTY OF OGLE, ILLINOIS, DESCRIBED AS
FOLLOWS:


 


COMMENCING AT THE SOUTHEAST CORNER OF THE SOUTHWEST QUARTER OF SAID
SECTION 32;

THENCE SOUTH 88 DEGREES 31 MINUTES 33 SECONDS WEST ALONG THE SOUTH LINE OF SAID
SOUTHWEST QUARTER, 40.00 FEET TO A LINE 40.00 FEET WEST OF AND PARALLEL WITH
THE EAST LINE OF SAID SOUTHWEST QUARTER TO THE POINT OF BEGINNING;

THENCE CONTINUING SOUTH 88 DEGREES 31 MINUTES 33 SECONDS WEST ALONG THE SOUTH
LINE OF SAID SOUTHWEST QUARTER, 2,612.09 FEET TO THE SOUTHEAST CORNER OF SAID
SOUTHEAST QUARTER OF SECTION 31;

THENCE SOUTH 88 DEGREES 19 MINUTES 19 SECONDS WEST ALONG THE SOUTH LINE OF SAID
SOUTHEAST QUARTER, 164.71 FEET TO A LINE 100.00 FEET EAST OF AND PARALLEL WITH
THE EASTERLY RIGHT OF WAY LINE OF BURLINGTON NORTHERN RAILROAD;

THENCE NORTH 16 DEGREES 46 MINUTES 55 SECONDS WEST ALONG SAID LINE, 523.21
FEET;

THENCE NORTH 10 DEGREES 58 MINUTES 44 SECONDS WEST, 79.90 FEET TO A POINT ON
CURVE;

THENCE NORTHEASTERLY, 854.97 FEET ALONG A NON-TANGENTIAL CURVE CONCAVE
SOUTHEASTERLY, HAVING A RADIUS OF 580.00 FEET, CHORD DISTANCE OF 779.64 FEET,
AND BEARING NORTH 31 DEGREES 12 MINUTES 34 SECONDS EAST;

THENCE NORTH 88 DEGREES 31 MINUTES 13 SECONDS EAST, 2,512.34 FEET TO A LINE 40
FEET WEST OF A PARALLEL WITH THE EAST LINE OF SAID SOUTHWEST QUARTER OF
SECTION 32;

THENCE SOUTH 01 DEGREES 13 MINUTES 52 SECONDS ALONG SAID EAST OF SOUTHWEST
QUARTER, 1,239.32 FEET TO SAID POINT OF BEGINNING, CONTAINING 3,532,165 SQUARE
FEET OR 81.087 ACRES MORE OR LESS.


 

















 


SCHEDULE 1-B: DEPICTION OF EXCHANGE PROPERTY


 


[Depiction of Exchange Property]


 

















 


SCHEDULE 2:      PRELIMINARY PLAN


 


[Diagram of Ethanol Plant]


 

















 


SCHEDULE 3:      RAIL DRAWINGS


 


[Rail Drawings]


 

















 


SCHEDULE 4:      FEES


 


 


GreenWay Consulting, LLC


Confidential


 


	
   

  	
   

  	
  SCHEDULE 4

  	
   

  
	
   

  	
   

  	
  IRE Preliminary Permit Fee
  Calculations

  	
   

  
	
  Building

  	
   

  	
  Type

  	
   

  	
  Length

  	
   

  	
  Width

  	
   

  	
  Height

  	
   

  	
  Sq.Ft.

  	
   

  	
  Cu.Ft.

  	
   

  	
  B & F

  Plan

  Review

  	
   

  	
  B & F

  Fire

  Sprinkler

  	
   

  	
  New

  Structures

  	
   

  	
  Plumbing,

  HVAC &

  Electrical

  	
   

  	
  Occupancy

  Permit

  	
   

  	
  Totals

  w/

  B & F

  	
   

  
	
  Administration

  	
   

  	
  Stick-Built

  	
   

  	
  40

  	
   

  	
  80

  	
   

  	
  10

  	
   

  	
  3,200

  	
   

  	
  32,000

  	
   

  	
  $

  	
  325

  	
   

  	
  $

  	
  325

  	
   

  	
  $

  	
  288

  	
   

  	
  $

  	
  192

  	
   

  	
  $

  	
  75

  	
   

  	
  $

  	
  1,205

  	
   

  
	
  DDGS

  	
   

  	
  Pre-Engineered

  	
   

  	
  150

  	
   

  	
  150

  	
   

  	
  24

  	
   

  	
  22,500

  	
   

  	
  540,000

  	
   

  	
  $

  	
  1,056

  	
   

  	
  $

  	
  562

  	
   

  	
  $

  	
  1,325

  	
   

  	
  $

  	
  450

  	
   

  	
  $

  	
  75

  	
   

  	
  $

  	
  3,468

  	
   

  
	
  Distillation

  	
   

  	
  Structural
  - w/ PEB siding & roofing

  	
   

  	
  50

  	
   

  	
  60

  	
   

  	
  41

  	
   

  	
  3,000

  	
   

  	
  123,000

  	
   

  	
  $

  	
  585

  	
   

  	
  $

  	
  362

  	
   

  	
  $

  	
  270

  	
   

  	
  $

  	
  180

  	
   

  	
  $

  	
  75

  	
   

  	
  $

  	
  1,472

  	
   

  
	
  Energy Center

  	
   

  	
  Structural - w/ PEB siding
  & roofing

  	
   

  	
  350

  	
   

  	
  400

  	
   

  	
  50

  	
   

  	
  140,000

  	
   

  	
  7,000,000

  	
   

  	
  $

  	
  6,224

  	
   

  	
  $

  	
  1,500

  	
   

  	
  $

  	
  7,200

  	
   

  	
  $

  	
  7,200

  	
   

  	
  $

  	
  75

  	
   

  	
  $

  	
  22,199

  	
   

  
	
  Fermentation

  	
   

  	
  Structural
  - w/ PEB siding & roofing

  	
   

  	
  45

  	
   

  	
  100

  	
   

  	
  26

  	
   

  	
  4,500

  	
   

  	
  117,000

  	
   

  	
  $

  	
  585

  	
   

  	
  $

  	
  362

  	
   

  	
  $

  	
  405

  	
   

  	
  $

  	
  270

  	
   

  	
  $

  	
  75

  	
   

  	
  $

  	
  1,697

  	
   

  
	
  Process Bldg 1

  	
   

  	
  Structural
  - w/ PEB siding & roofing

  	
   

  	
  20

  	
   

  	
  80

  	
   

  	
  21

  	
   

  	
  1,600

  	
   

  	
  33,600

  	
   

  	
  $

  	
  325

  	
   

  	
  $

  	
  362

  	
   

  	
  $

  	
  144

  	
   

  	
  $

  	
  96

  	
   

  	
  $

  	
  75

  	
   

  	
  $

  	
  1,002

  	
   

  
	
  Process Bldg 2

  	
   

  	
  Structural
  - w/ PEB siding & roofing

  	
   

  	
  60

  	
   

  	
  170

  	
   

  	
  30

  	
   

  	
  10,200

  	
   

  	
  306,000

  	
   

  	
  $

  	
  869

  	
   

  	
  $

  	
  362

  	
   

  	
  $

  	
  710

  	
   

  	
  $

  	
  612

  	
   

  	
  $

  	
  75

  	
   

  	
  $

  	
  2,628

  	
   

  
	
  Warehouse

  	
   

  	
  Pre-Engineered

  	
   

  	
  100

  	
   

  	
  60

  	
   

  	
  24

  	
   

  	
  6,000

  	
   

  	
  144,000

  	
   

  	
  $

  	
  585

  	
   

  	
  $

  	
  585

  	
   

  	
  $

  	
  500

  	
   

  	
  $

  	
  360

  	
   

  	
  $

  	
  75

  	
   

  	
  $

  	
  2,105

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  191,000

  	
   

  	
  8,295,600

  	
   

  	
  $

  	
  10,554

  	
   

  	
  $

  	
  4,420

  	
   

  	
  $

  	
  10,842

  	
   

  	
  $

  	
  9,360

  	
   

  	
  $

  	
  600

  	
   

  	
  $

  	
  35,776

  	
   

  
	
  MISCELLANEOUS FEES

  	
   

  	
  BASIS

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Site Plan Review

  	
   

  	
  40
  Acres

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
  275

  	
   

  
	
  Fencing

  	
   

  	
  3500
  LF

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
  250

  	
   

  
	
  Hard Surface

  	
   

  	
  200,000
  SF

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
  2,000

  	
   

  
	
  Tank Farm - Tank Fee

  	
   

  	
  7
  Tanks @ $75

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
  525

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
  38,826

  	
   

  



 


These preliminary numbers do
not include the cost of out sourcing some construction/engineering review to
Envirogen


 

















 


SCHEDULE 5:      PROPERTY TAX ABATEMENT


 


Rochelle Real Estate Tax Abatement program


 


Industrial projects in the Rochelle area that create jobs qualify for
real estate tax abatement in the amount of 90% year 1 and 75% year 2.  The abatement process must adhere to state
law and the pre-approval ordinances of the various taxing bodies.


 


1.                                       To qualify a
business must be newly created, an expansion of an existing industry, or moving
to Rochelle from another State or Foreign Country.  A business moving from another location within Illinois does not
qualify.


 


2.                                       The project must
be located in an industrial zoned location and must create at least 10 jobs.


 


3.                                       The business
must be in operation the year previous to qualifying for the abatement so the
abatement will be applied to a full assessment.


 


4.                                       The abatement
may be applied to later expansions and it only applies to any increased
assessed valuation resulting from the expansion.


 


5.                                       The abatement
applies to business that creates the jobs. 
An industry that locates in a leased facility must receive the abatement
benefits through the lease since the abatement is applied to the real estate
taxes.


 


6.                                       All taxing
bodies in the area have pre-approved the abatement, assuming all of the above
requirements are met, except Ogle County and Kishwaukee Community College.  GREDCO must make a formal request to Ogle
County and Kishwaukee Community College for their final approval.


 


7.                                       The Greater
Rochelle Economic Development Corp. (GREDCO) board must approve all projects
for abatement but have the authority to authorize the County Clerk to abate the
taxes if the above guidelines are met.


 

















 


 


SCHEDULE 6:  CITY PROPERTY


 


LEGAL DESCRIPTION OF THE CITY PROPERTY


 


PART OF THE SOUTHEAST QUARTER OF SECTION 31, TOWNSHIP 40 NORTH,
RANGE 2 EAST OF THE THIRD PRINCIPAL MERIDIAN BOUNDED AND DESCRIBED AS FOLLOWS:

COMMENCING AT THE NORTHEAST CORNER OF THE SOUTHEAST QUARTER OF SAID
SECTION 31; THENCE SOUTH 88 DEGREES 41 MINUTES 37 SECONDS WEST ALONG THE
NORTH LINE OF SAID SOUTHEAST QUARTER, A DISTANCE OF 891.14 FEET TO THE POINT OF
BEGINNING OF THE HEREINAFTER DESCRIBED TRACT OF LAND; THENCE SOUTH 16 DEGREES
21 MINUTES 46 SECONDS EAST PARALLEL WITH THE EASTERLY RIGHT-OF-WAY LINE OF THE
BURLINGTON NORTHERN RAILROAD, A DISTANCE OF 2745.32 FEET TO THE SOUTH LINE OF
THE SAID SOUTHEAST QUARTER; THENCE SOUTH 88 DEGREES 43 MINUTES 25 SECONDS WEST
ALONG SAID SOUTH LINE, A DISTANCE OF 103.57 FEET TO THE EASTERLY RIGHT-OF-WAY
LINE OF SAID BURLINGTON NORTHERN RAILROAD; THENCE NORTH 16 DEGREES 21 MINUTES
46 SECONDS WEST ALONG SAID EASTERLY RIGHT-OF-WAY LINE, A DISTANCE OF 2697.35
FEET TO THE BEGINNING OF A SPIRAL CURVE; THENCE NORTH 16 DEGREES 40 MINUTES 21
SECONDS WEST ALONG THE CHORD TO THE SAID SPIRAL CURVE, A DISTANCE OF 47.98 FEET
TO THE NORTH LINE OF SAID SOUTHEAST QUARTER; THENCE NORTH 88 DEGREES 41 MINUTES
37 SECONDS EAST ALONG SAID NORTH LINE, A DISTANCE OF 103.82 FEET TO THE POINT
OF BEGINNING, CONTAINING 6.302 ACRES, MORE OR LESS, ALL SITUATED IN THE
TOWNSHIP OF DEMENT, THE COUNTY OF OGLE AND THE STATE OF ILLINOIS.