Exhibit
10.1


 


EXECUTION VERSION


 


CONTRIBUTION AGREEMENT


 


This CONTRIBUTION AGREEMENT
(this “Agreement”), is made and effective as of the 20th day of
November, 2009 (the “Effective Date”), by Illinois
Corn Processing, LLC, a Delaware limited liability company (the “Company”),
and MGP Ingredients, Inc., a Kansas
corporation (“MGPI”).


 


R  E  C  I  T  A  L
S:


 


A.                                   MGPI is the
owner and operator of the alcohol production facility located at the Plant and,
to the extent transferable, all permits and licenses related to the Plant (the “Permits”);


 


B.                                     MGPI formed the
Company on October 5, 2009, as the sole member of the Company and desires
to contribute, convey, assign, transfer and deliver to the Company, as a
capital contribution of the sole member, all of MGPI’s right, title and
interest in and to (1) all assets relating to or located at the Plant (as
defined below), including, without limitation, property (real and personal),
building, plants, structures and equipment, leaseholds licenses, and the
Business IP (as defined below), other than the Excluded Equipment and the
Leased Equipment (each as defined below), (2) the Permits and (3) all
the books and records (or portions thereof) relating to such assets and Permits
(collectively, the “Contributed Assets”), subject to all Permitted
Encumbrances, and the Company desires to acquire and accept the Contributed
Assets from MGPI, subject to the terms and conditions set forth in this
Agreement.


 


A  G  R  E  E  M  E
N  T:


 


NOW, THEREFORE, in
consideration of the premises, which are incorporated into and made part of
this Agreement, the mutual representations, warranties, covenants, agreements,
and obligations contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto, intending to be legally bound hereby, agree as follows:


 


ARTICLE I


 


DEFINITIONS


 


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


 


1.2.                              “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.


 


1.3.                              “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.


 


1.4.                              “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.


 


1.5.                              “Business IP”
—as defined in Section 3.9(a).


 


1.6.                              “CERCLA”
—the United States Comprehensive Environmental Response Compensation, and
Liability Act, 42 U.S.C. Section 9601 et seq., as amended.


 


1.7.                              “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 CERCLA, RCRA, or applicable
and analogous state statutes, as each has been amended.


 


1.8.                              “Closing”
—the consummation of the transactions contemplated by this Agreement.


 


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


 


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


 


1.11.                        “Company
Indemnified Persons” —as defined in Section 7.2(a).


 


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


 


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


 


1.14.                        “Contributed
Assets” —as defined in the Recitals of this Agreement.


 


1.15.                        “Damages”—as
defined in Section 7.2(a).


 


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


 


1.17.                        “Effective
Date”—as defined in the Preamble to this Agreement.


 


1.18.                        “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, 


 


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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.


 


1.19.                        “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.


 


1.20.                        “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.


 


1.21.                        “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;


 


(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;


 


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(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.


 


1.22.                        “Excluded
Equipment”—the equipment located in the wheat starch and wheat protein
plant, all as set forth in Part 1.22 of the Disclosure Letter, that is
part of the facilities at the Plant, which shall remain the sole property of
MGPI.


 


1.23.                        “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.


 


1.24.                        “Governmental
Body”—any:


 


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


 


(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.


 


1.25.                        “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.


 


1.26.                        “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 


 


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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.


 


1.27.                        “Indemnified
Party”—as defined in Section 7.8(a).


 


1.28.                        “Indemnifying
Party”—as defined in Section 7.8(a).


 


1.29.                        “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.


 


1.30.                        “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.


 


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


 


1.32.                        “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.


 


1.33.                        “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.


 


1.34.                        “Known
Environmental Condition”—any Hazardous Activity or Release of Hazardous
Materials actually or constructively known by any current or former officer,
director, 


 


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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.


 


1.35.                        “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.


 


1.36.                        “Leased
Equipment”—the equipment described in Part 1.36 of the Disclosure
Letter, comprised of two forklifts, a front-end loader and a skid steer loader,
which will be leased to the Company pursuant to a services agreement.


 


1.37.                        “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.


 


1.38.                        “MGPI”
—as defined in the Preamble to this Agreement.


 


1.39.                        “MGPI
Closing Documents” —as defined in Section 3.2.


 


1.40.                        “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.


 


1.41.                        “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.


 


1.42.                        “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.


 


1.43.                        “Permits”
—defined in the Recitals to this Agreement.


 


1.44.                        “Permitted
Encumbrances”—(i) any liens for current taxes and special assessments,
if any, not yet due to the extent set forth in Part 3.3 of the Disclosure
Letter; (ii) existing Encumbrances that are set forth in Part 3.3 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 


 


6

















 


Company, and (iv) zoning
laws and other land use restrictions that do not impair the present use of the
property or the conduct of the Business.


 


1.45.                        “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.


 


1.46.                        “Plant”—the
alcohol production facility 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.


 


1.47.                        “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.


 


1.48.                        “RCRA”
—the Resource Conservation and Recovery Act, 42 U.S.C. Section 6973 et
seq., as amended.


 


1.49.                        “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 transactions contemplated hereby.


 


1.50.                        “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);


 


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


 


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


 


1.52.                        “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.


 


1.53.                        “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.


 


1.54.                        “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).


 


1.55.                        “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
determination, assessment, collection, or payment of any Tax, including Taxes
payable by, pursuant to or in 


 


8

















 


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.


 


1.56.                        “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.


 


1.57.                        “Third
Person”—as defined in Section 7.8(b).


 


1.58.                        “Third
Person Claim”—as defined in Section 7.8(b).


 


1.59.                        “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.


 


1.60.                        “Transaction
Taxes”—as defined in Section 5.1(a).


 


1.60                           “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.


 


ARTICLE II


 


CONTRIBUTION


 


2.1.                              Contribution of
Plant.  Upon the terms and subject to
the conditions set forth in this Agreement, MGPI shall and does hereby
contribute, convey, assign, and transfer to the Company, and the Company shall
and does hereby acquire and accept from MGPI, the Contributed Assets.  MGPI shall and does hereby agree to deliver
to the Company on the Effective Date, (i) a special warranty deed, in form
and substance reasonably satisfactory to the Company, with respect to the real
property comprising the Plant, (ii) an assignment of lease, in form and
substance reasonably satisfactory to the Company, with respect to the Lease
Agreement dated December 16, 1993, by and between MGPI
(successor-in-interest to Midwest Grain Products, Inc.) and Ameren Energy
Resources Generating Company (successor-by-assignment to CILCORP Development
Services Inc.), and (iii) a general bill of sale, in form and substance
reasonably satisfactory to the Company, with respect to all other Plant assets
and the Permits.  In addition, on the
Effective Date, MGPI shall cause at MGPI’s sole cost and expense, a title
company reasonably acceptable to the Company, to issue (or irrevocably and
unconditionally commit to issue in writing) an owner’s policy of title
insurance insuring title to the real property comprising the Plant in the
Company, subject only to the Permitted Exceptions, and in such form and with
such coverages (including, without limitation, by endorsements) as reasonably
acceptable to the Company and in an amount reasonably acceptable to MGPI and
the Company.  MGPI hereby agrees to, from
time to time, at the reasonable request of the Company, its successors and
assigns, execute and deliver such other instruments of conveyance and transfer 


 


9

















 


and other documents and take
such other actions as may be reasonably necessary to more effectively
consummate the contribution of the Contributed Assets to the Company consistent
with the terms hereof.  Such documents
may include, without limitation, affidavits, evidence of title, evidence of
authority, certificates of good standing, resolutions, consents and the like
from MGPI or other third parties as may be required by the aforementioned title
company or as may be reasonably requested by the Company.


 


2.2.                              Resulting Capital
Account.  It is agreed that the value
of the Contributed Assets and MGPI’s corresponding initial capital account
balance in the Company is Thirty Million Dollars ($30,000,000).


 


ARTICLE III


 


REPRESENTATIONS AND
WARRANTIES OF MGPI


 


MGPI represents and warrants
to the Company as follows:


 


3.1.                              Organization
and Good Standing.  MGPI is a
corporation duly organized, validly existing, and in good standing under the
laws of Kansas, 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 this Agreement. MGPI is duly
qualified to do business as a foreign corporation 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 MGPI, enforceable
against MGPI 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 MGPI of the documents required to be executed
and delivered by it in Section 2.1 (collectively, the “MGPI Closing
Documents”), the MGPI Closing Documents will constitute the legal, valid,
and binding obligations of MGPI, enforceable against MGPI in accordance with
their respective terms, subject to the application of any laws relating to
bankruptcy, insolvency or the rights of creditors generally. MGPI has the
absolute and unrestricted right, power, authority, and capacity to execute and
deliver this Agreement and the MGPI Closing Documents and to perform its
obligations under this Agreement and the MGPI Closing Documents, subject to the
application of any laws relating to bankruptcy, insolvency or the rights of
creditors generally.


 


(b)                                 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
transactions contemplated hereby 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 MGPI, or (B) any resolution adopted by the
board of directors or shareholders of MGPI;


 


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(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 transactions contemplated hereby
or to exercise any remedy or obtain any relief under, any Legal Requirement or
any Order to which MGPI, or any of the Contributed Assets, 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 MGPI or
that otherwise relates to any of the Contributed Assets;


 


(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
Contributed Assets.


 


(c)                                  Except as set
forth in Part 3.2 of the Disclosure Letter, MGPI is not nor will it 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 transactions contemplated hereby.


 


3.3.                              Title to
Properties; Encumbrances.


 


(a)                                  Part 3.3
of the Disclosure Letter contains a complete and accurate list of the
Contributed Assets. MGPI will deliver or make available to the Company copies
of the deeds and other instruments (as recorded) by which the Company will
acquire such real property and interests pursuant to this Agreement, and copies
of all title insurance policies, opinions, abstracts, and surveys in the
possession of MGPI relating to such property or interests.  Except with respect to Permitted
Encumbrances, MGPI 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, MGPI 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 after the Closing Date. 
Except for Permitted Encumbrances, the Contributed Assets 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 MGPI,
unrecorded.  Except as set forth in Part 3.3 of the
Disclosure Letter, MGPI does not lease (as the
lessor), sublease or permit any third party to occupy or use the Plant.


 


11

















 


(b)                                 Except for “cap and trade” carbon emission legislation, to the Knowledge of
the MGPI, 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 MGPI, Threatened condemnation
proceeding against the Plant.  To the Knowledge
of MGPI, 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 3.3 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 MGPI, the current
use of the Plant does not violate (A) any instrument of record, any
Permitted Encumbrances, 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 enable the continued operation of the Plant
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 MGPI 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 MGPI 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 MGPI, the Plant and its continued use, 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 MGPI, there has been no Cleanup performed at the Plant
that would entitle a third party to a lien for reimbursement of its Cleanup
costs.


 


3.4.                              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 Contributed Assets are sufficient for the conduct of the Business
after the Closing.


 


3.5.                              Taxes.  Except as set forth in Part 3.5 of the
Disclosure Letter:


 


(a)                                  MGPI 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.  MGPI is not currently the beneficiary of any
extension of time within which to file any Tax Return relating to the Business.


 


12

















 


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


 


(c)                                  There are no
audits or examinations of any Tax Returns of MGPI relating to the Business,
pending or Threatened.  MGPI 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)                                 MGPI, 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 MGPI, 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 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 MGPI, 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
Contributed Assets (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
the 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)                                 MGPI, 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 MGPI, with respect
to the Business, has no knowledge that the IRS has proposed any such adjustment
or change in accounting method.


 


(i)                                     MGPI, with
respect to the Business, has no obligation under any Tax indemnity, Tax
allocation or sharing agreement or arrangement, and after the Closing Date,
MGPI, with respect to the Business, will not 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.  None of the Contributed Assets is a Tax
indemnity, Tax allocation or sharing agreement or arrangement.


 


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


 


(k)                                  MGPI, with
respect to the Business, is not a party to any agreement, contract, arrangement
or plan that has resulted, or would result, in a payment that would not be 


 


13

















 


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 MGPI, with respect to the Business, 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)                                     MGPI, with
respect to the Business, 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.


 


(m)                               The Contributed
Assets have never been financed with or directly or indirectly secure any
industrial revenue bonds or debt the interest on which is tax-exempt under Section 103(a) of
the IRC.  MGPI, 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)                                 None of the
Contributed Assets are a partnership interest or other arrangement or contract
that could be treated as a partnership for federal income tax purposes.


 


(o)                                 MGPI, with
respect to the Business, does not have any liability for the Taxes of any
Person as a transferee or successor, by contract or otherwise.


 


(p)                                 MGPI, 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.


 


(q)                                 True, correct
and complete copies of all income Tax Returns, tax examination reports and
statements of deficiencies assessed against, or agreed to of MGPI, 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 the Company.


 


3.6.                              Compliance with
Legal Requirements; Governmental Authorizations.


 


(a)                                  Except as set
forth in Part 3.6 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 as contemplated hereby; and


 


(ii)                                  MGPI 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 any
actual, alleged, possible, or potential violation of, or failure 


 


14

















 


to comply with, any Legal Requirement, or to
undertake, or to bear all or any portion of the cost of, any remedial action of
any nature.


 


(b)                                 Part 3.6
of the Disclosure Letter contains a complete and accurate list of each
Governmental Authorization included in the Contributed Assets or that otherwise
relates to the Plant.  Part 3.6 of
the Disclosure Letter specifically identifies and distinguishes each such
Governmental Authorization required to operate the Plant that is not included in
the Contributed Assets.  The Governmental
Authorizations listed in Part 3.6 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 anticipates conducting and operating the Business and (ii) to own
and use the Plant in accordance with MGPI’s historical use.


 


3.7.                              Legal
Proceedings; Orders.


 


(a)                                  There is no
pending Proceeding:


 


(i)                                     that has been
commenced by or against MGPI (with respect to the Business) or that otherwise
relates to or may affect the Business or any of the Contributed Assets; or


 


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


 


(b)                                 Except as set
forth in Part 3.7 of the Disclosure Letter, there is no Order to which
MGPI (with respect to the Business), or any of the Contributed Assets, are
subject.


 


3.8.                              Environmental
Matters.  Except as set forth in Part 3.8
of the Disclosure Letter:


 


(a)                                  The Plant is,
and at all times has been, in full compliance with all Environmental Laws.  MGPI 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.


 


(b)                                 MGPI has not
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 MGPI, is Threatened by
any Governmental Authority or other Person relating to the Plant relating to or
arising out of any Environmental Law or relating to any Environmental,
Health, and Safety Liabilities.


 


15

















 


(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)                                    MGPI has not 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 Company prior to the date of this Agreement.


 


(i)                                     MGPI has never
received from any Person any notice of nor does MGPI 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, 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 MGPI, 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 MGPI under any present and future Environmental
Law, including, without limitation, CERCLA.


 


16

















 


(k)                                  No expenditure
will be required in order for MGPI 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 MGPI or the Company.


 


3.9.                              Intellectual
Property.


 


(a)                                  Part 3.9
of the Disclosure Letter accurately describes and lists all (i) Intellectual
Property owned by MGPI necessary to conduct the Business as proposed to be
conducted and (ii) all Intellectual Property licensed by MGPI and material
to the Business (the “Business IP”).


 


(b)                                 Except as set
forth in Part 3.9 of the Disclosure Letter:


 


(i)                                     MGPI is the
sole owner of the Business IP identified as owned by it, free and clear of all
Liens, 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)                               MGPI and, to
MGPI’s Knowledge, the owners of the Business IP licensed to MGPI have taken all
actions necessary to maintain and protect the Business IP;


 


(iv)                              There has been
no claim made or, to MGPI’s Knowledge, Threatened against MGPI asserting the
invalidity, misuse or unenforceability of any of the Business IP or challenging
MGPI’s 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 MGPI’s Knowledge, Threatened;


 


(vi)                              The
consummation of the transactions contemplated by this Agreement will not alter,
impair or extinguish any rights in and to any of the Business IP except to the
extent such rights are transferred to the Company;


 


(vii)                           There exists no
restriction on the use of the Business IP, or on the transfer of any rights of
in and to any of the Business IP, and the Company has the right to use each
item of Business IP without obligations to third parties;


 


(viii)                        To MGPI’s
Knowledge, the conduct of the Business and the ownership, production, purchase,
sale, licensing and use of the Company’s products (in the manner the Company
anticipates conducting and operating the Business) 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, and no proprietary
information or trade secret included in the Contributed Assets has been
misappropriated by MGPI from any Third Person; and


 


17

















 


(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
MGPI’s Knowledge, the Business IP is not being infringed upon or violated by
any Third Person.


 


3.10.                        Labor
Relations; Compliance. 
Except as set forth on Part 3.10 of the Disclosure Letter, since January 1,
2008 MGPI has not been or nor is a party to any collective bargaining or other
labor Contract nor is MGPI a successor to any such Contract or any other labor
obligation or liability required by Law or otherwise. Except as set forth on Part 3.10
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 MGPI (with respect to the Business) 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 Governmental Body, organizational activity, or other labor or
employment dispute against or affecting MGPI, or (c) any application for
certification of a collective bargaining agent. MGPI 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.


 


3.11.                        Brokers or
Finders.  Except for the fees of BMO
Capital to be paid by MGPI, MGPI 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.


 


ARTICLE IV


 


REPRESENTATIONS AND
WARRANTIES OF THE COMPANY


 


The Company represents and
warrants to MGPI as follows:


 


4.1.                              Due
Organization; Existence; Good Standing; Enforceability.


 


(a)                                  The Company is
a limited liability company duly formed, validly existing, and in good standing
under the laws of the State of Delaware. 
The Company is a newly formed limited liability company without any
property or assets or operations other than its initial capitalization.


 


(b)                                 This Agreement
has been duly and validly executed and delivered by the Company and (assuming
due authorization, execution, and delivery by the other signatories to this
Agreement) this Agreement constitutes the legal, valid, and binding obligation
of the Company, enforceable against the Company in accordance with its terms.


 


4.2.                              Capitalization.  MGPI will be the sole member of the Company
on the Effective Date.


 


18

















 


ARTICLE V


 


COVENANTS


 


5.1.                              Taxes Matters.


 


(a)                                  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 authority with respect to the
transactions contemplated by this Agreement (“Transaction Taxes”) shall
be the sole obligation of MGPI.  MGPI
shall provide written notice to the Company of the payment of and/or a written
response to the Company upon any request for information regarding the status
of any Transaction Taxes.  MGPI 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.


 


(b)                                 All Taxes
applicable to or payable with respect to with the Business or the Contributed
Assets in respect of any taxable periods ending on or before the Closing Date
are the responsibility of and shall be paid by MGPI.  Taxes relating to any taxable period
commencing prior to and ending after the Closing Date (a “Straddle Period”)
shall be pro-rated between MGPI and the Company at Closing; such Taxes for the
taxable period through the Closing Date are the responsibility of MGPI and such
Taxes for the taxable period after the Closing Date are the responsibility of
the Company.  If the amount of any such
item is not ascertainable on the Closing Date, the credit therefor shall be
based on the most recent available bill, subject to reconciliation after the
Closing Date when the actual bills are available.  For the purposes of this Section 5.1(b),
in the case of any Taxes that are imposed on a periodic basis and are payable
for a taxable period that includes but does not end as of the Closing Date, the
portion of such tax that relates to the portion of such taxable period ending
as of the Closing Date shall be deemed to be the amount of such Tax for the
entire taxable period multiplied by a fraction, the numerator of which is the
number of days in the taxable period ending as of the Closing Date and the
denominator of which is the number of days in the entire taxable period.


 


5.2.                              Excluded
Equipment.  Unless
otherwise agreed by MGPI and the Company, MGPI shall be entitled to store the
Excluded Equipment rent-free in its current location at the Plant until the
later of (but no event longer than three years from the Closing Date): (i) the
first anniversary of this Agreement; and (ii) the Company securing a
commercial use of the Plant space where such Excluded Equipment is currently
stored.  MGPI shall be entitled to enter
the Plant during normal business hours and with reasonable prior notice to
maintain and remove the Excluded Equipment.


 


5.3.                              General
Cooperation.  If,
at any time after the Effective Date, any further actions are necessary,
advisable, or desirable to carry out the purposes of this Agreement and to
consummate the transactions, each of the parties hereto will take such further
actions (including the execution and delivery of such further instruments and
documents) as any other party hereto may reasonably request, all at the sole
cost and expense of the requesting party.


 


19
















 


ARTICLE VI


 


CONDITIONS PRECEDENT TO
EFFECTIVENESS OF THIS AGREEMENT


 


6.1.                              Conditions
Precedent to the Company’s Obligations to Consummate Transactions.  The effectiveness of this Agreement and the
Company’s obligations hereunder shall and are hereby subject to the
satisfaction, on or prior to the Effective Date, of each of the following
conditions precedent (any of which may be waived in writing by the Company in
its sole discretion):


 


(a)                                  Conveyance of
Plant.  MGPI shall have conveyed title
to the Plant to the Company, subject only to the Permitted Encumbrances.


 


(b)                                 Absence of
Proceedings.  No
Proceeding by any Governmental Entity or other Person shall be pending or
Threatened which: (i) is likely to have a Material Adverse Effect; or (ii) seeks
to or could enjoin, restrain, prohibit, or invalidate, or could result in
substantial damages in respect of, any provision of this Agreement or the
consummation of the Transactions.


 


(c)                                  Bankruptcy;
Solvency.  Neither the
Company nor MGPI shall: (i) be involved in any Proceeding by or against
the Company as a debtor before any Governmental Entity under Title 11 of the
United States Bankruptcy Code or any other insolvency or debtors’ relief Law,
or for the appointment of a trustee, receiver, liquidator, assignee, sequestrator,
or other similar official of the Company or MGPI, as applicable, or for a
substantial part of the Company’s or MGPI’s, as applicable, property or assets;
or (ii) be insolvent or be rendered insolvent by any of the Transactions.


 


6.2.                              Conditions to
MGPI’s Obligation to Consummate Transactions.  The effectiveness of this Agreement and MGPI’s
obligations hereunder shall and are hereby subject to the reasonable
satisfaction, on or prior to the Effective Date, of each of the following
conditions precedent (any of which may be waived in writing by MGPI in its sole
discretion):


 


(a)                                  Consents.  MGPI shall have received for the holders of
the Permitted Encumbrances such consents, releases and other approvals which
MGPI determines to be sufficient to enable MGPI to transfer the Plant to the
Company without creating a Breach or default under any contract or commitment
of MGPI.


 


ARTICLE VII


 


INDEMNIFICATION


 


7.1.                              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, 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 


 


20

















 


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.


 


7.2.                              Indemnification
and Payment of Damages by MGPI.


 


(a)                                  MGPI will
indemnify, defend and hold harmless the Company and its Representatives,
members, controlling persons, and affiliates (collectively, the “Company
Indemnified Persons”) for, and will pay to the Company Indemnified Persons
the amount of, any loss, liability, claim, damage (including incidental and
consequential damages), expense (including costs of investigation and defense
and reasonable attorneys’ fees) (collectively, “Damages”), arising,
directly or indirectly, from or in connection with:


 


(i)                                     any Breach of
any representation or warranty made by MGPI 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 MGPI pursuant to this Agreement;


 


(ii)                                  any Breach by
MGPI of any covenant or obligation of MGPI in this Agreement; or


 


(iii)                               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 MGPI (or any Person acting on its behalf) in connection with any of
the transactions contemplated hereby.


 


(b)                                 Except in the
case of fraud, intentional misrepresentation, willful misconduct or the
indemnification provided under Section 7.3, the remedies provided in this Section 7.2
will be the exclusive remedy available to the Company and the other the Company
Indemnified Persons with respect to condition of the Plant and the transactions
contemplated hereby.


 


7.3.                              Indemnification
and Payment of Damages by MGPI — Environmental Matters.


 


(a)                                  MGPI will
release, indemnify, defend and hold harmless the Company and the other Company
Indemnified Persons for, and will pay to the Company and the other Company
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 


 


21

















 


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
MGPI, 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 MGPI, at any time on or
prior to the Closing Date.


 


(iii)                               any Known Environmental
Condition (to the extent not covered by Sections 7.3(a)(i) or (ii)): (A) where
MGPI, 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.  MGPI’s indemnity obligation under
this Section 7.3(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 MGPI 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
Condition at the Plant is Cleaned-up to cleanup standards published by the
applicable Governmental Body applicable to commercial or industrial property
and MGPI shall not impose upon the Plant any institutional, engineering, or
land use controls except to the extent approved in advance in writing by the
Company, in its reasonable discretion.


 


(iv)                              any Known Environmental
Condition (to the extent not covered by Sections 7.3(a)(i), (ii), or (iii)): (A) where
MGPI, 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.  MGPI’s indemnity
obligation under this Section 7.3(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 7.3(a)(i) or (ii)): (A) where
MGPI, 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.  MGPI’s indemnity obligation under
this Section 7.3(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 MGPI undertakes and
completes in an expeditious manner all 


 


22

















 


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 7.3(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.  MGPI’s
indemnity obligation under this Section 7.3(a)(vi) shall be limited
to 50% of any such Damages or Environmental Health and Safety Liabilities.


 


(b)                                 Subject to the
above and MGPI providing prompt prior written notice to the Company of any
Cleanup or any Proceeding related thereto, MGPI 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 7.3. The procedure described in Section 7.8 will
apply to any claim solely for monetary damages relating to a matter covered by
this Section 7.3.


 


(c)                                  Any
indemnification with respect to environmental matters that could be brought under
this Section 7.3 shall be governed by this Section 7.3 and not by Section 7.2
as it relates to a Breach of Section 3.8 caused by such environmental
matter; provided, that the foregoing limitation
shall not affect the Company’s right to seek indemnification pursuant to Section 7.2
for any Breach of Section 3.8 not addressed by this Section 7.3.


 


7.4.                              Indemnification
and Payment of Damages by the Company.  The Company will indemnify, defend and hold
harmless MGPI, and will pay to MGPI the amount of any Damages arising, directly
or indirectly, from or in connection with (a) any Breach of any
representation or warranty made by the Company in this Agreement or in any
certificate delivered by the Company pursuant to this Agreement, or (b) any
Breach by the Company of any covenant or obligation of the Company in this
Agreement.


 


7.5.                              Time
Limitations.  Except with
respect to Sections 3.5 (Taxes) and 3.8 (Environmental Matters) (which will
survive Closing through the applicable statute of limitations), if the Closing
occurs, MGPI 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, the Company notifies MGPI of a claim
specifying the factual basis of that claim in 


 


23

















 


reasonable detail to the
extent then known by the Company; 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, the Company
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 MGPI notifies the Company of a claim specifying
the factual basis of that claim in reasonable detail to the extent then known
by MGPI.


 


7.6.                              Limitations on
Amount — MGPI.  Except with
respect to Sections 3.5 (Taxes) and 3.8 (Environmental Matters) (which will
survive Closing through the applicable statute of limitations and any claim on
which shall not be subject to this Section 7.6), MGPI will have no
liability (for indemnification or otherwise) with respect to the matters
described in clause (a)(i) or clause (a)(ii) of Section 7.2
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
$30,000,000. Notwithstanding anything herein to the contrary, MGPI will have no
liability (for indemnification or otherwise) with respect to this Agreement or
the transactions contemplated hereby in excess of $30,000,000 other than in the
case of a claim for Breach of Section 3.5 (Taxes) or Section 3.8
(Environmental Matters) or a claim under Section 7.3.  However, this Section 7.6 will not apply
(i) in the case of fraud, willful misconduct or intentional
misrepresentation by MGPI and (ii) to any Breach of any of MGPI’s
representations and warranties of which MGPI had Knowledge at any time prior to
the date on which such representation and warranty is made, and MGPI will be
liable for all Damages with respect to such Breaches.


 


7.7.                              Limitations on
Amount — the Company. The Company will have no liability (for
indemnification or otherwise) with respect to the matters described in Section 7.4
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
$30,000,000. However, this Section 7.7 will not apply to any Breach of any
of the Company’s representations and warranties of which the Company had
Knowledge at any time prior to the date on which such representation and
warranty is made or any intentional Breach by the Company of any covenant or
obligation, and the Company will be liable for all Damages with respect to such
Breaches.


 


7.8.                              Procedure for
Indemnification.


 


(a)                                  Promptly after
receipt by an indemnified party under Section 7.2, 7.4, or (to the extent
provided in the last sentence of Section 7.3(c)) Section 7.3 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 7.8(a) is brought against the
Indemnified Party by any claimant other than the Indemnifying Party (a “Third
Person”), the 


 


24

















 


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 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 7.6
and 7.7, 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 ARTICLE
VII 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 8.10 and solely as between MGPI and the Company
for purposes of carrying out the intent of this Section 7.8, MGPI and the
Company hereby consent to the non-exclusive jurisdiction of any court in which
a Proceeding is brought by a Third Person against any 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.


 


25
















 


ARTICLE VIII


 


GENERAL PROVISIONS


 


8.1.                              Expenses.  MGPI shall pay for the costs and expenses
(including all fees and disbursements of accountants, counsel, and other
professionals) incurred by the Company and MGPI in connection with the
preparation, negotiation, execution, and delivery of this Agreement and the
consummation of the Transactions through the Effective Date.  After the Effective Date, each party hereto
shall bear its own costs and expenses (including all fees and disbursements of
accountants, counsel, and other professionals) of any nature whatsoever in
connection with the consummation of the Transactions or otherwise.


 


8.2.                              Binding Effect.  This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective heirs,
legatees, legal representatives, successors, and permitted assigns.  This Agreement shall not be assignable by any
party hereto without the prior written consent of all of the other parties and
any attempt to assign this Agreement without such consent shall be void and of
no effect.  Nothing in this Agreement,
expressed or implied, is intended or shall be construed to confer upon any
Person, other than the parties and the successors and assigns permitted by this
Section, any right, remedy, or claim under or by reason of this Agreement.


 


8.3.                              Amendment;
Waiver.  No amendment, modification, or
discharge of this Agreement, and no waiver hereunder, shall be valid or binding
unless set forth in writing and duly executed by the party against whom
enforcement of the amendment, modification, discharge, or waiver is
sought.  Any such waiver shall constitute
a waiver only with respect to the specific matter described in such writing and
shall in no way impair the rights of the party granting such waiver in any other
respect or at any other time.  The waiver
by any of the parties hereto of a Breach of or a default under any of the
provisions of this Agreement or a failure to or delay in exercising any right
or privilege hereunder, shall not be construed as a waiver of any other Breach
or default of a similar nature, or as a waiver of any of such provisions,
rights, or privileges hereunder.  The
rights and remedies herein provided are cumulative and none is exclusive of any
other, or of any rights or remedies that any party may otherwise have at law or
in equity.


 


8.4.                              Entire
Agreement.  This
Agreement (including the Exhibits and Schedules referred to herein or the
documents of conveyance delivered hereunder) constitutes the entire agreement
and supersede all prior agreements and understandings, both written and oral,
among the parties with respect to the subject matter hereof.


 


8.5.                              Enforcement of
this Agreement.  From and
after the admission of a member to the Company other than MGPI and
notwithstanding anything to the contrary contained in the Limited Liability
Company Agreement then governing the Company, MGPI shall have no right to
enforce or waive any provision of this Agreement or to take any other action in
connection with this Agreement as a Member of, or on behalf of, the Company,
and all such rights shall be exercised by such other member or members in its
or their sole discretion acting by a majority of the membership interests in
the Company (without regard to the membership interests owned or controlled by
MGPI).


 


26

















 


8.6.                              Severability.  If any provision, including any phrase,
sentence, clause, section, or subsection, of this Agreement is invalid,
inoperative, or unenforceable for any reason, such circumstances shall not have
the effect of rendering such provisions in question invalid, inoperative, or
unenforceable in any other case or circumstance, or of rendering any other
provision herein contained invalid, inoperative, or unenforceable to any extent
whatsoever.


 


8.7.                              Headings.  The headings contained in this Agreement are
for purposes of convenience only and shall not affect the meaning or
interpretation of this Agreement.


 


8.8.                              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.


 


8.9.                              GOVERNING LAW.  THIS AGREEMENT SHALL BE
CONSTRUED, PERFORMED, AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
DELAWARE, WITHOUT GIVING EFFECT TO ITS PRINCIPLES OR RULES OF CONFLICT OF LAWS
TO THE EXTENT SUCH PRINCIPLES OR RULES WOULD REQUIRE OR PERMIT THE APPLICATION
OF THE LAWS OF ANOTHER JURISDICTION.


 


8.10.                        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 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.


 


8.11.                        Interpretation.  The language used in this Agreement shall be
deemed to be the language chosen by the parties to express their mutual intent
and no rule of strict construction shall be applied against any
party.  Unless otherwise expressly
specified in this Agreement: (a) the words “hereof”, “hereby”,
and “hereunder,” and correlative words, refer to this Agreement as a
whole and not any particular provision; (b) the words “include”, “includes”,
and “including”, and correlative words, are deemed to be followed by the
phrase “without limitation”; (c) the word “or” is not exclusive and
is deemed to have the meaning “and/or”; (d) references in this
Agreement to a “party” means the Company or MGPI and to the “parties”
means the Company and MGPI; (e) words using the singular or plural number
shall also include the plural or singular number, respectively; (f) the
section headings contained in this Agreement are inserted for convenience only
and shall not affect in any way the meaning or interpretation of this
Agreement; (g) the masculine, feminine, or neuter form of a word includes
the other forms of such word and the singular form of a word includes the
plural form of such word; (h) references to a Person shall include the
successors and assigns thereof; (i) references made in this 


 


27

















 


Agreement to an Article,
Section, Schedule, or Exhibit mean an Article or Section of, or
a Schedule or Exhibit to, this Agreement; (j) references to any
Contract or other document are to that Contract or document as amended,
modified, supplemented, or restated from time to time in accordance with the
terms thereof; (k) references to any particular Law means such Law as
amended, modified, supplemented, or succeeded, from time to time and in effect
at any given time; and (l) and any capitalized term used but not defined
in a Schedule or Exhibit to this Agreement shall have the meaning set
forth in this Agreement.


 


[SIGNATURES FOLLOW ON NEXT PAGE]


 


28

















 


COUNTERPART SIGNATURE PAGE TO CONTRIBUTION AGREEMENT


 


IN WITNESS WHEREOF, the
Company and MGPI have caused this Agreement to be duly executed and delivered
as an instrument under seal as of the Effective Date.


 


 


	
   

  	
  THE
  COMPANY:

  
	
   

  	
   

  
	
   

  	
  Illinois
  Corn Processing, LLC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  MGP
  Ingredients, Inc., its sole member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  Timothy W. Newkirk

  
	
   

  	
  Name:

  	
  Timothy
  W. Newkirk

  
	
   

  	
  Title:

  	
  President
  and CEO

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  MGPI:

  
	
   

  	
   

  
	
   

  	
  MGP
  Ingredients, Inc.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  Timothy W. Newkirk

  
	
   

  	
  Name:

  	
  Timothy
  W. Newkirk

  
	
   

  	
  Title:

  	
  President
  and CEO

  



 


29

















 


EXHIBIT A


 


LEGAL DESCRIPTION OF PLANT


 


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.


 


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 


 


30

















 


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.


 


31