**Exhibit 10.5**

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**RIDER TO DP INDUSTRIAL ANNEXATION AGREEMENT**

 

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

 

**Background**

 

A.            The City, DPIndustrial and the Consenting Parties (as defined in the Annexation Agreement)are entering into the Annexation Agreement relating to the Subject Propertycontemporaneously herewith.

 

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

 

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

 

Rider to DP Industrial Annexation Agreement,

 

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

 

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

 

**Terms**

 

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

 

**I.  MODIFICATIONS TOANNEXATION AGREEMENT UPON ACQUISITION OF THE EXCHANGE PROPERTY BY IRE OR ANAFFILIATE OF IRE. **

 

If IREor an Affiliate of IRE acquires the Exchange Property, immediately uponacquiring the Exchange Property the following modifications to the AnnexationAgreement shall be effective with respect to the Exchange Property without anyfurther action by the City or any other party to the provisions:

 

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

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# Exchange Property. Notwithstanding anything to the contrary contained within thisAgreement, nothing contained herein shall be deemed to obligate IRE to assumeDP Industrial’s monetary obligations described in the Annexation Agreement orthis Rider with respect to infrastructure improvements to water, sewer andelectrical facilities and the roads relating to the Exchange Property or theSubject Property to the extent such costs are the obligations of DP Industrialas set forth in the Annexation Agreement.

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# 2.             **Anticipated Development.**  IRE anticipates that it will develop theExchange Property with an Ethanol Production Facility, or other industrial usesrelated to ethanol production, including without limitation, CO2 Purificationand or Bottling, CO2 conversion to dry ice (separately and collectivelyhereinafter sometimes referred to as a “CO2 Production Facility”), and anyother ethanol production, co-product or by-product, that becomes commerciallyviable in the future (all such uses are collectively referred to herein as an“Ethanol Production Facility”).  Solelywith respect to the Exchange Property, references in the Annexation Agreementto DP Industrial’s intended use of the Subject Property for warehousing,distribution, assembly, and light manufacturing (collectively, an “IndustrialFacility”) and similar references shall be deemed to refer to IRE’s intendeduse of the Exchange Property as an Ethanol Production Facility.

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

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# lease of the Exchange Property, or some part thereof,from the Consenting Parties to IRE and possibly from IRE to third parties as orfor an Ethanol Production Facility, or other industrial uses related to ethanolproduction, including without limitation, CO2 Production Facility and any otherethanol production, co-product or by-product, that becomes commercially viablein the future.  The City agrees topermit any use of the Exchange Property that is permitted within an I-2 zoningdistrict.  Notwithstanding anythingcontained in any City Ordinance or this Rider to the contrary, in order toexpedite the development of a part of the Exchange Property as a CO2 ProductionFacility the City agrees that neither a lease of a part of the ExchangeProperty for a CO2 Production Facility that is otherwise exempt fromsubdivision requirements under the terms of the Illinois Plat Act or otherstate law, nor the construction of buildings or improvements on land which isso leased and which is otherwise exempt from subdivision requirements under theterms of the Illinois Plat Act or other state law, shall require subdivisionapproval from the City of Rochelle, including, without limiting the generalityof the foregoing any subdivision approvals or reviews under Titles 15, 16and/or 17 of the Rochelle Municipal Code as now enacted, or as hereafteramended or superseded by any future ordinance, rule or regulation.

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# 4.             **Development of Exchange Property.**

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

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## (b)           The legend on the PreliminaryPlan has or may have, certain details and specifications for some of thebuildings, equipment and improvements contemplated to be constructed byIRE.  The City represents and warrantsthat the buildings, equipment and improvements to be constructed by IRE asdetailed in the legend on the Preliminary Plan, are permitted under theprovisions of Rochelle Municipal Code including, without limitation, the I-2zoning district regulations without any special use, conditional permit orvariance being required. Notwithstanding anything to the contrary contained within this Rider orthe Annexation Agreement, the City agrees that, pursuant to Title 17 Chapter17.76 Section 17.76010B, the following items are exempt from the maximumheight limits of the Rochelle Municipal Code and as such no variance is or willbe required: thermal oxidizer; CO2 scrubber stack; grain storage/bins; grainbin; dryer; feed bin; fermenter; beer well; distillation column and load outflare.  The City further agrees, thatspecific uses, locations and sizes of equipment, buildings and structures on Schedule 2within the Exchange Property may be changed by IRE, provided that the changescomply with the I-2 zoning district regulations. The City represents andwarrants that all I-2 zoning district regulations are set forth within Title 17of the Rochelle Municipal Code and further that true and correct copies of thecurrent version of said Titles of the Rochelle Municipal Code have beenprovided to IRE.  The City furtheragrees, notwithstanding anything contained herein or in the Rochelle MunicipalCode to the contrary, that signs, fences, driveways, sidewalks, utilities,overhead transmission lines, distribution lines and appurtenant facilities,railroad tracks and appurtenant facilities, belonging to either the IRE or the Cityare specifically permitted within the building setback rules or regulations ofthe City. The parties understand that the Exchange Property may be developed inphases, over time, depending on market conditions. The City acknowledges andagrees that the grading and building permits for

 

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## the Ethanol Production Facility improvements whichcomply with the two preceding sentences can be obtained without the need forplanned development, special use, conditional use, site plan (except inconjunction with customary City building permit reviews), appearance review,subdivision or variation approvals, notwithstanding anything contained in Cityordinances to the contrary, provided that variation approvals shall be requiredif relief is sought from the I-2 zoning district regulations.  IRE will, pursuant to the terms of theRochelle Municipal Code, submit a landscape improvement plan.  The City agrees not to unreasonably withholdapproval of the landscape improvement plan.

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## (c)           The City agrees toexpeditiously process demolition, grading, building permit and related permitsand approvals respecting the Ethanol Production Facility improvements on theExchange Property or which serve the Exchange Property (including withoutlimitation permits to perform work which are off-site within public highways,roads and right-of-way) with said approval not to be unreasonably withheld orunduly delayed, and utilize best efforts to approve the same within tenbusiness days after the date of application. In the event any application for City permits cannot be approved, theCity will state its reasons to IRE in writing within the aforesaid period andallow IRE to resubmit its applications. In the event either Ogle County, the Illinois Department ofTransportation or other governmental entity having any authority in theparticular matter has issued a permit or has advised IRE that no permit isrequired, respecting grading, storm-water drainage, storm-water compensatorystorage, storm-water detention retention, and other work and IRE has expendedsums of money in reliance on such permits or advice that no permit is requiredat the time the Exchange Property is annexed into the City of Rochelle, workauthorized under the aforesaid County, State or other governmental entity

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

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

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## 5.             **Roads**. 

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(a)           The City shallcomplete the road construction work described in Section 8 of theAnnexation Agreement in accordance with the terms and conditions of the AnnexationAgreement.  Notwithstanding anything tothe contrary contained in the Annexation Agreement or this Rider, subject toevents of Force Majeure as defined in the Annexation agreement, the City shallcooperate with Ogle County as needed in connection with Ogle County’s roadconstruction from Hwy. 251 on the west to the south boundary of Ogle Countyalong Steward Road on or  beforeMarch 1, 2004.

 

## (b)           Tothe extent permitted by law, except to the extent attributable to the negligentacts or omissions of IRE, its directors, employees, agents and contractors theCity shall indemnify and hold harmless the Exchange Property and IRE, its andtheir successors and assigns, from all claims, suits, threats of suit, loss,costs (including attorneys fees and costs of suit), injury (including personalinjury), or damage or liens arising from the City’s construction of the roadsdescribed in the Annexation Agreement with City’s performance of itsobligations under this paragraph to survive the expiration or termination of thisRider.  Prior to commencing anyconstruction of such roads, the City will cause its general contractor orcontractors to provide

 

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

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## (c)           Notwithstandinganything to the contrary contained in the Annexation Agreement, if IRE acquiresthe Exchange Property, DP Industrial shall continue to be responsible forpaying the costs of the roadway improvements as described in Section 8 ofthe Annexation Agreement and IRE shall not be responsible for any such costs.

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## 6.             **Utilities Specifications.**

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

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

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## relating thereto, in accordance with the AnnexationAgreement and this Rider. To the extent permitted by law, except to the extentattributable to the negligent acts or omissions of IRE, its directors,employees, agents and contractors the City shall indemnify and hold harmlessthe Exchange Property and IRE, its and their successors and assigns, from allclaims, suits, threats of suit, loss, costs (including attorneys fees and costsof suit), injury (including personal injury), or damage or liens arising fromthe City’s construction of the water and sewer lines (collectively, the“Utilities System”) and the extension of the electrical service with City’sperformance of its obligations under this paragraph to survive the expirationor termination of this Rider.  Prior tocommencing any construction of the Utilities System or the extension of theelectrical service, the City will cause its general contractor or contractorsto provide IRE with evidence that there is in place commercially reasonableinsurance respecting the construction of the Utilities System and the extensionof the electrical service naming IRE as an additional insured on such generalliability policy or policies.

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

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

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

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## (e)           Notwithstanding anything tothe contrary contained in the Annexation Agreement, if IRE acquires theExchange Property, DP Industrial shall continue to be responsible for payingthe costs of the installation of the Water Facilities as described inSection 7 of the Annexation Agreement and IRE shall not be responsible forany such costs.

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# 7.                                       **Water Facilities.**

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## (a)           In connection with the City’sUtilities Systems work described in the Annexation Agreement, the City shallconstruct sufficient Water Facilities in order to bring water service to theExchange Property sufficient to service the Exchange Property in accordancewith City standards.  The City shallcomplete the Water Facilities work described in the Annexation Agreement inaccordance with the following schedule: (i) subject to events of Force Majeure (as defined in the AnnexationAgreement) and notwithstanding anything to the contrary contained in theAnnexation Agreement or this Rider the Water Facilities shall be extended,meaning and intending to include, initiating and completing construction of thesame, to the west boundary of

 

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

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

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

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## (d)           Notwithstanding anything tothe contrary contained in the Annexation Agreement, if IRE acquires theExchange Property, DP Industrial shall continue to be responsible for payingthe costs of the installation of the Water Facilities as described inSection 6 of the Annexation Agreement and IRE shall not be responsible forany such costs.

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# 8.                                       **Sewer Facilities.**

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## (a)           In connection with the City’sUtilities Systems work described in the Annexation Agreement, the City shallconstruct sufficient Sewer Facilities in order to bring sewer service to theExchange Property sufficient to service the Exchange Property for IRE’santicipated use and in accordance with City standards.** **TheCity shall complete the Sewer Facilities work described in the AnnexationAgreement in accordance with the following schedule:  (i) subject to events of Force Majeure (as defined in theAnnexation Agreement) the Sewer Facilities shall be extended, meaning andintending to include, initiating and completing construction of the same, tothe west boundary of the Barth Property on or before December 15, 2003,and (ii) subject to events of Force Majeure (as defined in the AnnexationAgreement), the Sewer Facilities shall be extended, meaning and intending toinclude, initiating and completing construction of the same, to (A) theeast boundary of the Barth Property and (B) the Ogle County line along theeast boundary of the Yesac Property on or before May 1, 2004.  Except for the connection charges set forthon Exhibit F-3 attached to the Annexation Agreement and made a parthereof which shall be in effect for five years after the annexation of theExchange Property, IRE shall be permitted to connect to the Sewer Facilities atno cost in locations that IRE selects in its sole discretion, provided IRE’simprovement plans conform to all applicable City ordinances in effect as of thedate of the Annexation Agreement.

 

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## (b)           The City represents that itssewer treatment facilities, as well as the improvements to be constructed asprovided for herein, are currently of sufficient capacity to serve the currentand anticipated development of the Exchange Property in the capacities shown onExhibit G-1 attached to the Annexation Agreement, with no additionalcost to IRE other than usual and customary fees, charges and rates of generalapplicability in the City.

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## (c)           Notwithstanding anything tothe contrary contained in the Annexation Agreement, if IRE acquires theExchange Property, DP Industrial shall continue to be responsible for payingthe costs of the installation of the Sewer Facilities as described inSection 7 of the Annexation Agreement and IRE shall not be responsible forany such costs.

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# 9.                                       **Electrical Service Facilities.**

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

 

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## expense.  IREshall be permitted to connect to the electrical facilities at no cost inlocations that IRE selects in its sole discretion, provided IRE’s improvementplans conform to all applicable City ordinances in effect as of the date ofthis Rider.  The City agrees todistribute the electrical service throughout the Exchange Property per theCity’s current requirements, and, if requested in writing by IRE and iftechnologically feasible and in compliance with applicable law, agrees to burythe electrical lines on the Exchange Property at  the sole cost of IRE.

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

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(c)           The Cityagrees that it shall not charge any rates for electricity at the ExchangeProperty in excess of the lowest rate that it charges for similar users withcomparable volumes.

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(d)           Notwithstandinganything to the contrary contained in this Rider, IRE shall be and remainresponsible for the difference between the cost of an underground electricdistribution line and overhead electric distribution line on the ExchangeProperty and the difference between the cost of an underground fibre optic lineand an overhead fibre optic line should IRE elect to install such anunderground distribution line or an underground fibre optic line on theExchange Property.

 

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(e)           To the extentpermitted by law, except to the extent attributable to the negligent acts oromissions of the City, its directors, employees, agents and contractors IREshall indemnify and hold harmless the City, its successors and assigns, fromall claims, suits, threats of suit, loss, costs (including attorneys fees andcosts of suit), injury (including personal injury), or damage or liens arisingfrom IRE’s construction of the Ethanol Production Facility with IRE’sperformance of its obligations under this paragraph to survive the expirationor termination of this Rider. Prior to commencing any construction of theEthanol Production Facility, IRE will cause its general contractor orcontractors to provide the City with evidence that there is in placecommercially reasonable insurance respecting the construction of the EthanolProduction Facility naming the City as an additional insured on such generalliability policy or policies.

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

 

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# 10.                                 **Storm Water Retention / Detention.**

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## (a)           IRE shall submit a storm watermanagement plan to the City in compliance with the proposed City Storm WaterManagement Ordinance, which the City envisions adopting on or aboutJuly 14, 2003.  The City representsthat a true and correct copy of the proposed City Storm Water ManagementOrdinance has been delivered to IRE. The City agrees that it will promptlyreview the Stormwater Management Plan and that its review thereof will not beunreasonably withheld.   The City agreesIRE shall not be required to provide for any compensatory storm water storageby reason of the development of the Exchange Property as contemplated underthis Rider.  The City further agreesthat the IRE may, in the case of fire or other similar emergency, use the stormwater retention/detention as and for a supplemental supply of water.  The City acknowledges that the ExchangeProperty shall be permitted to drain into the City/Brossman Right-of-Way andthen into Steward Creek as described in Section 9 of the AnnexationAgreement.  IRE has agreed to contribute$36,000.00 to the City in connection with the City’s efforts to accomplishcertain regional drainage and offsite detention objectives (the “Detention Contribution”).  Owner shall pay the Detention Contributionto the City promptly after City’s issuance of a building permit for theconstruction of the Ethanol Production Facility.

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

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## (c)           The City further agrees toprovide for, and maintain, at the City’s sole cost and expense, a reasonablysufficient lawful storm water retention/detention outlet for the release ofIRE’s storm water retention/detention basins.

 

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# 11.           **Fiber Optic Line Installation.**  In connection with the annexation anddevelopment of the Exchange Property, the City shall construct sufficient FiberFacilities in accordance with Section 11 of the Annexation Agreement inorder to bring fiber optic service to the Exchange Property sufficient toservice the Exchange Property for its anticipated use and in accordance withCity standards.  In addition, the City,at it sole cost, shall install the Fiber Facilities on the Exchange Property inorder to distribute such facilities to the improvements on the ExchangeProperty.  Subject to events of ForceMajeure (as defined in the Annexation Agreement), the City shall extend, at theCity’s cost, the Fiber Facilities to the Exchange Property on or beforeJuly 1, 2004.  Neither DPIndustrial nor IRE shall be required to contribute to the cost of such extension.  IRE shall be permitted to connect to theFiber Facilities at the standard connection fee in locations that IRE select inits sole discretion, provided IRE’s improvement plans conform to all applicableCity ordinances in effect as of the date of this Rider. 

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

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

 

(b)           Extension. The City shall, atthe City’s sole cost and expense, construct an extension of the City Lead Trackfrom its current termination point north of the north right of way line ofIllinois Tollway Authority Interstate Highway 88 within the right-of-way shownon the Preliminary Plan of Development and/or the Rail Drawings and identifiedthereon as “City Lead Track”.  Theinitial extension of the City Lead Track will extend south to a point that is2160 feet south of the north Lee County line (“Phase 1 of the City Lead Track”)and will be completed, subject to events of Force Majeure, on or beforeJune 1, 2004.   The secondextension of the City Lead Track will extend to a point that is

 

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### 2160 feet south of the termination point of Phase 1 ofthe City lead Track (“Phase 2 of the City Lead Track”).  The City’s work as to Phase 1 of the CityLead Track described in this Section shall be described as the “City’sRail Work”.  The scope of the City’sRail Work is also described on Exhibit “O” attached hereto and made a parthereof (the “Rail Drawings”).   The Cityrepresents that the City has requested donations of certain rail equipment fromothers, including switches.  To theextent the City receives a sufficient number of switch to install theswitch(es) shown on Exhibit O, the City shall install such switch(es) at IRE’srequest and, in such event, IRE shall pay the City $10,000 per switch plusreasonable installation costs.  If theCity does not receive a sufficient number of switch(es), or if IRE elects notto acquire the City’s switch(es), IRE shall be responsible for acquiring theremaining required switch(es), if any, and upon such acquisition the City shallinstall such switch(es), at IRE’s expense. Notwithstanding the provisions of the preceding sentence, as part of theCity’s Rail Work the City shall install switch(es) as set forth on the RailDrawings provided, however, switch(es) that serve IRE’s trackage shall beinstalled by the City at IRE’s expense. Upon completion of plans andspecifications for the City Rail Work, the City shall deliver such plans andspecifications to IRE, for IRE’s review and approval of the switch(es) setforth therein.  The City agrees not toimpose any fee, tax, assessment or charge of any kind or type as against IRE thatis connected with, or in any way related to: (i) IRE’s right to connect to,(ii) IRE’s right to use, or (iii) IRE’s use of, the City Lead Track.  The terms of this Article 12 areexpressly made binding upon the successors, assigns and transferees of the Citywhether such successors receive their interest in the City Lead Track by sale,lease, operating agreement or other transfer of any right, title or interest inor to the City Lead Track.  The Cityagrees to execute a recordable memorandum sufficient to give record notice ofthe agreements set forth in this Section.

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

 

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

 

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

 

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

 

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will construct Phase II of the Ethanol ProductionFacility; and (ii) deposits with the City One Hundred Thousand Dollars($100,000.00) (the “Engineering Deposit”). The City’s obligation to construct Phase 2 of the City Lead Trackincludes, but is not limited to, acquisition of any necessary real estate, theacquisition of all necessary governmental permits, the development of allnecessary designs and plans for Phase 2 of the City Lead Track (includingbridges) and the physical construction of Phase 2 of the City Lead Track,including any necessary bridges and switches (collectively the “Construction ofPhase 2 of the City Lead Track”). In the event the City, through no fault ofits own, is unable to obtain all governmental permits or is unable to make suchconnections to the Class 1 railroad mainlines as are necessary to constructPhase 2 of the City Lead Track by the Construction Date, the Construction Dateshall be extended by the amount of time so required to obtain the necessarygovernmental permit or permits or the connections to the Class 1 railroadmainlines.  Upon completion of plans andspecifications for Phase 2 of the City Lead Track, the City shall deliver suchplans and specifications to IRE, and IRE shall have the right to review andapprove the same, with such review and approval not to be unreasonably delayedor withheld.  Except as hereinafterexpressly provided, the Construction of Phase 2 of the City Lead Track shall beat the City’s sole cost and expense (the “Phase 2 Costs”).  On the first day of the first full calendaryear following the date the City has completed the Construction of Phase 2 ofthe City Lead Track (the “First Year”), and on the same day of each succeedingcalendar year, provided that, that year’s Phase 2 Income is less than TwoHundred Thousand ($200,000.00) Dollars, IRE agrees to pay to the City thedifference between that year’s Phase 2 Income and Two Hundred Thousand Dollars($200,000.00) (the “Shortfall”) until the City has recaptured all Phase 2 Costsless the Engineering Deposit, meaning and intending to include anyindebtedness, and the interest thereon, incurred by the City in theConstruction of Phase 2 of the City Lead Track.   Notwithstanding anything to the contrary contained in theAnnexation Agreement or this Rider, in the event Phase 2 Income exceeds TwoHundred Thousand Dollars ($200,000.00) during the First Year, and/or anycalendar year thereafter, (the “Excess Income”), the Excess Income shallaccumulate and shall be credited against a future Shortfall, or Shortfalls,owed by IRE to the City, if any. Notwithstanding anything to the contrarycontained 

 

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in the Annexation Agreement or this Rider, the Cityagrees to use and apply the Phase 2 Income, the Shortfall payments and theExcess Income, if any to the Phase 2 Costs until the Phase 2 Costs arecompletely paid.  Notwithstandinganything to the contrary contained in the Annexation Agreement or this Rider,the City agrees that the cost of any real estate that may be required for Phase2 of the City Lead Track shall not be included in the Phase 2 Costs.  In addition, in the event the City extendsthe City Lead Track, prior to IRE’s written notice and Engineering Deposit asset forth herein, for reasons other than Phase II of the Ethanol ProductionFacility, IRE shall not have any obligation to pay for all or any part of anysuch extension**. **Notwithstanding anything to the contrary contained inthe preceding sentence, or this Rider, the Phase 2 Costs shall not include, orbe deemed to include, any costs or expenses that are not necessary and directlyrelated to the construction of Phase 2 of the City Lead Track for the benefitof, and the construction of, Phase II of the Ethanol Production Facility.****Notwithstanding anything to the contrarycontained in the Annexation Agreement or this Rider, the City will have noobligation to commence construction of Phase 2 of the City Lead Track until IREhas commenced actual construction of Phase II of the Ethanol ProductionFacility.

 

(f)            Indemnities; Insurance. TheCity shall complete the performance of its obligations to extend the aforesaidCity Rail Line under this Section in a manner that does not cause anymechanics liens to be imposed upon the Exchange Property. To the extentpermitted by law and except to the extent attributable to the negligent acts oromissions of IRE, its directors, employees, agents, or contractors, the Cityshall indemnify and hold harmless the Exchange Property and IRE, its officers,directors, employees, agents and its and their successors and assigns, from allclaims, suits, threats of suit, loss, cost (including attorney’s fees and costsof suit), injury, personal injury, damage or liens arising from the City’sperformance of its obligations under this Section with said obligation tosurvive the expiration or termination of the Annexation Agreement.  Prior to commencing any constructionpursuant to this Section, the City will cause its general contractor orcontractors to provide IRE with evidence that there is in place commerciallyreasonable insurance respecting the construction on such general liabilitypolicy or policies.  Once extended bythe City at the City’s cost as provided herein, the City’s shall not charge IREfor any of IRE’s use or uses, from time to time, of the City Rail Line.

 

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# 13.           **Performance of Work.**  Section 12(b) of the AnnexationAgreement shall not apply to the Exchange Property and IRE shall not beentitled to exercise the rights set forth in Section 12(b).

#  

# 14.           **Infrastructure. **Exceptas expressly set forth in this Rider or in the Annexation Agreement, IRE shallnot be required to construct any on-site or off-site public infrastructure orperform any other construction, maintenance, repairs, replacements oralterations in connection with the development and use of the ExchangeProperty.  The City represents andwarrants that it has no knowledge of, or reason to know of, any on-site oroff-site City infrastructure improvements or the need for repairs, replacementsor alterations to any City infrastructure improvements which must or should bemade in connection with the development and use of the Exchange Property ascontemplated under this Rider, except as is expressly set forth in thisRider.  If necessary in conjunction withthe City’s performance of its obligations under this Rider, IRE agrees toexpedite any necessary IRE reviews of proposed City construction activity on orabout IRE’s Property and to waive any IRE-imposed review fees.  In conjunction with the City’s performanceof its obligations under this Rider, the City agrees to improve itsinfrastructure, from time to time, so that the City shall maintain aninfrastructure with sufficient capacity to serve the needs of the EthanolProduction Facility from time to time, including, without limitation, allinfrastructure reasonably necessary so that the City shall be able to providesufficient water, sewer, electric and rail service to the Ethanol ProductionFacility.  More specifically, the Cityagrees that it will maintain or improve its infrastructure, from time to time,such that the City will at all times, have the capability of supplying not lessthan one million two

 

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

#  

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

#  

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

#  

# 23

# 

#  

# and the costs thereof.  IRE acknowledges that there are, or may be, fees or other coststhat are required to be paid by IRE to the City in connection with theconstruction of the Ethanol Prodcution Facility that are not included inSchedule 4 and the City represents that it has given IRE schedules of themajor fees or costs.  IRE acknowledgesthat there are, or may be fees for certain professionals, including engineeringfees or other consultant fees (“Outside Professionals”), that may be engaged bythe City for reviewing IRE’s plans (including the storm-water management plan)drawings and specifications that are not listed in Schedule 4 andthat the City will seek reimbursement for the cost thereof from the IRE.Notwithstanding anything contained to the contrary within this Rider, the Cityrepresents, warrants and agrees that the City has not, and shall not enter intoany agreement with any third party, whereby the Exchange Property, or any partthereof (meaning and intending to include the Ethanol Production Facility) ismade subject to the terms of any recapture agreement or other instrumentdesigned to, or including any provisions providing for, the recapture of costsor expenses relating to any public improvement of any kind or type.  The City further represents and warrantsthat the Exchange Property is not, and shall not, be made subject to any Cityordinance, special assessment or other City rule that is designed to, orincludes any provisions providing for, the recapture of costs or expensesrelating to any public improvement of any kind or type.

#  

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

#  

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

 

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best efforts to obtain approval of the abatementsdescribed on Schedule 5 from other taxing districts not already apart of the plan, if any.  The taxabatement plan shall commence upon the first day of the first full calendaryear following completion of the Ethanol Production Facility and thecommencement of Ethanol Production. The provisions of the preceding sentence areintended to permit IRE to receive the full benefit of the abatement bydeferring any abatement until the first day of the first calendar yearfollowing completion of the Ethanol Production Facility.”

 

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

#  

# 19.           **Conflicts.**  In theevent of a conflict between the Annexation Agreement and this Rider, the termsand provisions of this Rider shall prevail.

#  

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

#  

# 21.           **Affiliateof IRE**.  As used in thisRider, an “Affiliate of IRE” shall mean (1) any entity resulting from a mergeror consolidation with IRE or any organization purchasing substantially all ofIRE’s assets, (2) any subsidiary, affiliate or parent of IRE, (3) any entitycontrolling, controlled by or under common control with IRE, (4) any entityrelated to IRE, and (5) any joint venture partner of IRE.

 

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# 22.           **Recapture.**  Notwithstanding anything to the contrary contained within: (i) the IREAnnexation Agreement, including any Rider thereto; (ii) the AnnexationAgreement, including this Rider; (iii) any recapture agreement; (iv) or anystatute, ordinance, regulation or other rule of law, neither the City nor DPIndustrial, including, without limitation, their successors, affiliates orassigns, shall have the right to recapture any costs for any of the realestate, easements or infrastructure improvements contemplated to be acquiredand/or made under the above mentioned annexation agreements, including, withoutlimitation, the construction, improvement or extension of water facilities,sewer facilities, electric, fiber optics, roads or railroad lines from anycurrent or future owner or lessee of all or any part of the Yesac Property orthe Exchange Property, or the Yesac Property or the Exchange Propertythemselves.  The City expressly waivesthe provisions of any ordinance or agreement, whether now or hereafterexisting, which gives, or purports to give, the City any right to recapture anyone or more of the costs mentioned in the preceding sentence.

#  

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

#  

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

#  

# 26

# 

#  

# Agreement, notwithstanding anything to the contrarycontained herein, City’s obligations set forth in this Rider shall becontingent upon Owner building an Ethanol Facility on the Exchange Property,with construction of the same commencing on or before February 1, 2004,failing which IRE or the City may declare this Rider terminated upon writtennotice to the other party. Upon termination as set forth in the precedingsentence, neither party shall have any further obligations to the other partyunder this Agreement, except that the following obligations shall survive suchtermination: (i) IRE’s obligation to convey and/or dedicate the 40’right-of-way on Steward Road and (ii) IRE’s obligation to grant the easementsfor the Utility Easement Area and the Construction Easement Area on theExchange Property as described in Section 23 of this Rider.  Nothing contained in this Section shallaffect the City’s obligations to DP Industrial under the AnnexationAgreement.  

#  

**II.  MISCELLANEOUSPROVISIONS**

 

Thefollowing terms and provisions shall become effective immediately upon the fullexecution and delivery of the Annexation Agreement and this Rider:

 

# 25.           **Third Party Beneficiary. **IRE shall be deemed to be a third partybeneficiary to the Annexation Agreement and this Rider.

#  

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

 

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

#  

# 27.           **Assignability.** Prior to the annexation of the Exchange Property to the City, DPIndustrial shall have the right, without the City’s or the Consenting Parties’approval, to assign all of its obligations, rights and responsibilities underthe Annexation Agreement and this Rider to IRE or an Affiliate of IRE inconnection with an assignment of the purchase option agreements described inthe recitals of the Annexation Agreement.

#  

# 28.           **Waiver.**  No waiverof any condition or provision of the Annexation Agreement or this Rider by anyparty shall be valid unless in writing signed by such party.  No such waiver shall be deemed or construedas a waiver of any other or similar provision or of any future event, act, ordefault.

#  

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

#  

# 30.           **Headings.**  Headingsof articles and sections herein are for convenience of reference only and shallnot be construed as part of the Annexation Agreement or this Rider.

 

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# 31.           **Illinois Law.**  TheAnnexation Agreement and this Rider shall be governed by and construed inaccordance with the laws of the State of Illinois.

#  

# 32.           **Fees.**  In the eventany dispute arises hereunder, and litigation or arbitration proceedings arecommenced, the prevailing party shall be entitled to recover from the otherparty all costs and expenses incurred in connection with such proceedings,including but not limited to reasonable attorneys’ fees and costs.

#  

# 33.           **No Interpretation Against the Drafter.**  In no event shall the Annexation Agreementor this Rider be construed more strongly against any one person solely becausesuch person or its representative acted as draftsman hereof, it beingacknowledged by the parties hereto that both have been represented by competentlegal counsel, that the Annexation Agreement and this Rider have been subjectto substantial negotiation, and that all parties have contributed substantiallyto the preparation of the Annexation Agreement and this Rider.

#  

# 34.           **Severability.**  Ifany provision of the Annexation Agreement or this Rider is held invalid by acourt of competent jurisdiction, or in the event such court shall determinethat the City does not have the power to perform any such provision, suchprovision shall be deemed to be excised here from and the invalidity thereofshall not affect any of the other provisions contained herein, and suchjudgment or decree shall relieve the respective party from performance undersuch invalid provision of the Annexation Agreement or this Rider.

#  

# 35.           **Counterparts**.  TheAnnexation Agreement and this Rider may be executed in two or morecounterparts, each of which taken together shall constitute one and the sameinstrument.

#  

# 29

# 

#  

# 36.           **Definitions.   **Allterms not defined in this Rider shall have the meanings ascribed to such termsin the Annexation Agreement.

#  

# 37.           **ConsentingParties.**  Notwithstandinganything to the contrary contained herein, the parties hereto acknowledge andagree that: (i) the Consenting Parties shall have no obligations whatsoeverwith respect to this Rider, and  (ii) noportion of the Subject Property shall be burdened in any way whatsoever by thisRider unless and until IRE purchases the Exchange Property at which time theExchange Property purchased by IRE shall be subject to the terms and conditionsof this Rider.  

 

[Signature Page Follows]

 

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

 
|   | **CITY OF ROCHELLE** |
|--------|----------------------|
|   |                 |   |
|   |                 |   |
|   | By:                  |    /s/ Chet Olson |
|   | Name:                |    Chet Olson |
|   | Its:                 |    Mayor |
|   | Date:                |    7-29-03 |
|        |                      |  |  |  |  |  |

 

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|   | **DP INDUSTRIAL, LLC**               |
|--------|--------------------------------------|
|   |                                 |
|   |                                 |
|   | DP INDUSTRIAL, LLC                   |
|   | a Delaware limited liability company |
|   |                                 |
|   | By:  DP  Venture Co. LLC,       |
|   | a Delaware limited liability company |
|   | Its:  Manager                   |
|   |                                 |
|   | By:  DP  Promote Co. LLC,       |
|   | a Delaware limited liability company |
|   | Its:   Managing Member          |
|   |                                 |
|   | By:                                  |   /s/ Michael  Dermody |
|   | Name:                                | Michael Dermody |
|   | Title:                               | Managing Member |
|        |                                      |  |  |

 

32

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|   | **YESAC FARMS, L.P.** |
|--------|-----------------------|
|   |                  |
|   |                  |
|   | By:                   |    /s/ Larry F. Casey |
|   | Name:                 |    Larry F. Casey |
|   | Its:                  |   |
|   | Date:                 |    7-14-03 |
|   |                  |   |
|   | By:                   |    /s/ Patricia E. Casey |
|   | Name:                 |    Patricia E. Casey |
|   | Its:                  |   |
|   | Date:                 |    7-14-03 |
|        |                       |  |  |  |  |  |

 

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|   | **MARIE BARTH**                                                                                                         |
|--------|-------------------------------------------------------------------------------------------------------------------------|
|   |                                                                                                                    |
|   |    /s/  Marie Barth                                                                                           |
|   |                                                                                                                    |
|   | Date:                                                                                                                   |    7-14-03 |
|   |                                                                                                                    |
|   |                                                                                                                    |
|   | **JOYCE STOCKING AS TRUSTEES UNDER THE  STOCKING FAMILY TRUST NO. 4-96 UNDER TRUST AGREEMENT DATED JUNE 18, 1996** |
|   |                                                                                                                    |
|   |                                                                                                                    |
|   | By:                                                                                                                     |    /s/ Joyce Stocking |
|   | Name:                                                                                                                   |    Joyce Stocking |
|   | Its:                                                                                                                    |    Owner & Trustee |
|   | Date:                                                                                                                   |    7-14-03 |
|   |                                                                                                                    |
|   | **NOGGLE FAMILY LIMITED PARTNERSHIP**                                                                                   |
|   |                                                                                                                    |
|   | By:                                                                                                                     |    /s/ Robert O. Nogle |
|   | Name:                                                                                                                   |   |
|   | Its:                                                                                                                    |    General Partner |
|   | Date:                                                                                                                   |    7-29-03 |
|   |                                                                                                                    |
|        |                                                                                                                         |  |  |  |  |  |  |

 

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| STATE OF  | Illinois |   |
|-----------|----------|--------|
|      |     | SS     |
| COUNTY OF | Ogle     |   |

 

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

 

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

 
|   |    /s/  Alan H. Cooper |
|--------|---------------------------------------|
|   | Notary  Public                        |

 

[seal]

 
| STATE OF  | Nevada |   |
|-----------|--------|--------|
|      |   | SS     |
| COUNTY OF | Washoe |   |

 

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

 

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

 
|   |    /s/ Sharon R. Mills |
|--------|----------------------------------|
|   | Notary  Public                   |

 

[seal]

 

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| STATE OF  | Illinois |   |
|-----------|----------|--------|
|      |     | SS     |
| COUNTY OF | Ogle     |   |

 

I, theundersigned, a Notary Public in and for the County and State Aforesaid, dohereby certify that **LARRY F. CASEY**personally known to me to be partner in **YESACFARMS, L.P.**, and personally known to me to be the same person whosename is subscribed to the foregoing instrument, appeared before me this day inperson and acknowledged that he signed and delivered such instrument, in hiscapacity as partner of such limited partnership, as his free and voluntary actand as the free and voluntary act and deed of such limited partnership, for theuses and purposes therein set forth.

 

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

 
|   |    /s/ Charles P. Cole, Jr. |
|--------|---------------------------------------|
|   | Notary  Public                        |

 

[seal]

 

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| STATE OF  | Illinois |   |
|-----------|----------|--------|
|      |     | SS     |
| COUNTY OF | Ogle     |   |

 

 

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

 

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

 
|   |     /s/ Charles P. Cole, Jr. |
|--------|----------------------------------------|
|   | Notary  Public                         |

 

[seal]

 

37

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| STATE OF  | Illinois |   |
|-----------|----------|--------|
|      |     | SS     |
| COUNTY OF | Ogle     |   |

 

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

 

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

 
|   |    /s/ Bonnie J. Moore |
|--------|----------------------------------|
|   | Notary  Public                   |

 

[seal]

 
| STATE OF  | Illinois |   |
|-----------|----------|--------|
|      |     | SS     |
| COUNTY OF | Ogle     |   |

 

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

 
|   |    /s/ Bonnie J. Moore |
|--------|----------------------------------|
|   | Notary  Public                   |

 

[seal]

 

38

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| STATE OF  | Illinois |   |
|-----------|----------|--------|
|      |     | SS     |
| COUNTY OF | Kane     |   |

 

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

 
|   |     /s/ David E. Do |
|--------|------------------------------------|
|   | Notary  Public                     |

 

[seal]

 

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**Schedules to Rider**

 

Schedule 1-A:       Descriptionof Exchange Property

 

Schedule 1-B:        Depictionof Exchange Property

 

Schedule 2:            PreliminaryPlan

 

Schedule 3:            RailDrawings

 

Schedule 4:            Fees

 

Schedule 5:            PropertyTax Abatement

 

Schedule 6:            CityProperty

 

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**SCHEDULE 1-A:  DESCRIPTION OF EXCHANGE PROPERTY**

 

THAT PART OF THE SOUTHEAST QUARTER OF SECTION 31 AND PART OF THESOUTHWEST QUARTER OF SECTION 32 , ALL IN TOWNSHIP 40 NORTH, RANGE 2 EASTOF THE THIRD PRINCIPAL MERIDIAN, COUNTY OF OGLE, ILLINOIS, DESCRIBED ASFOLLOWS:

 

COMMENCING AT THE SOUTHEAST CORNER OF THE SOUTHWEST QUARTER OF SAIDSECTION 32;THENCE SOUTH 88 DEGREES 31 MINUTES 33 SECONDS WEST ALONG THE SOUTH LINE OF SAIDSOUTHWEST QUARTER, 40.00 FEET TO A LINE 40.00 FEET WEST OF AND PARALLEL WITHTHE EAST LINE OF SAID SOUTHWEST QUARTER TO THE POINT OF BEGINNING;THENCE CONTINUING SOUTH 88 DEGREES 31 MINUTES 33 SECONDS WEST ALONG THE SOUTHLINE OF SAID SOUTHWEST QUARTER, 2,612.09 FEET TO THE SOUTHEAST CORNER OF SAIDSOUTHEAST QUARTER OF SECTION 31;THENCE SOUTH 88 DEGREES 19 MINUTES 19 SECONDS WEST ALONG THE SOUTH LINE OF SAIDSOUTHEAST QUARTER, 164.71 FEET TO A LINE 100.00 FEET EAST OF AND PARALLEL WITHTHE EASTERLY RIGHT OF WAY LINE OF BURLINGTON NORTHERN RAILROAD;THENCE NORTH 16 DEGREES 46 MINUTES 55 SECONDS WEST ALONG SAID LINE, 523.21FEET;THENCE NORTH 10 DEGREES 58 MINUTES 44 SECONDS WEST, 79.90 FEET TO A POINT ONCURVE;THENCE NORTHEASTERLY, 854.97 FEET ALONG A NON-TANGENTIAL CURVE CONCAVESOUTHEASTERLY, HAVING A RADIUS OF 580.00 FEET, CHORD DISTANCE OF 779.64 FEET,AND BEARING NORTH 31 DEGREES 12 MINUTES 34 SECONDS EAST;THENCE NORTH 88 DEGREES 31 MINUTES 13 SECONDS EAST, 2,512.34 FEET TO A LINE 40FEET WEST OF A PARALLEL WITH THE EAST LINE OF SAID SOUTHWEST QUARTER OFSECTION 32;THENCE SOUTH 01 DEGREES 13 MINUTES 52 SECONDS ALONG SAID EAST OF SOUTHWESTQUARTER, 1,239.32 FEET TO SAID POINT OF BEGINNING, CONTAINING 3,532,165 SQUAREFEET OR 81.087 ACRES MORE OR LESS.

 

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**SCHEDULE 1-B: DEPICTION OF EXCHANGE PROPERTY**

 

[Depiction of Exchange Property]

 

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**SCHEDULE 2:      PRELIMINARY PLAN**

 

[Diagram of Ethanol Plant]

 

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**SCHEDULE 3:      RAIL DRAWINGS**

 

[Rail Drawings]

 

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**SCHEDULE 4:      FEES**

 

** **

**GreenWay Consulting, LLC**

**Confidential**

 
|                   |   | **SCHEDULE 4**                               |       |
|------------------------|--------|----------------------------------------------|------------|
|                   |   | **IRE Preliminary Permit Fee  Calculations** |       |
| **Building**           |   | **Type**                                     |       | **Length** |   | **Width** |   | **Height** |   | **Sq.Ft.** |   | **Cu.Ft.** |   | **B & F  Plan  Review** |   | **B & F  Fire  Sprinkler** |   | **New  Structures** |   | **Plumbing,  HVAC &  Electrical** |   | **Occupancy  Permit** |   | **Totals  w/  B & F** |   |
| Administration         |   | Stick-Built                                  |       | 40 |   | 80 |   | 10 |   | 3,200 |   | 32,000 |   | $ | 325 |   | $ | 325 |   | $ | 288 |   | $ | 192 |   | $ | 75 | ** ** | **$** | **1,205** | ** ** |
| DDGS                   |   | Pre-Engineered                               |       | 150 |   | 150 |   | 24 |   | 22,500 |   | 540,000 |   | $ | 1,056 |   | $ | 562 |   | $ | 1,325 |   | $ | 450 |   | $ | 75 | ** ** | **$** | **3,468** | ** ** |
| Distillation           |   | Structural  - w/ PEB siding & roofing    |       | 50 |   | 60 |   | 41 |   | 3,000 |   | 123,000 |   | $ | 585 |   | $ | 362 |   | $ | 270 |   | $ | 180 |   | $ | 75 | ** ** | **$** | **1,472** | ** ** |
| Energy Center          |   | Structural - w/ PEB siding  & roofing    |       | 350 |   | 400 |   | 50 |   | 140,000 |   | 7,000,000 |   | $ | 6,224 |   | $ | 1,500 |   | $ | 7,200 |   | $ | 7,200 |   | $ | 75 | ** ** | **$** | **22,199** | ** ** |
| Fermentation           |   | Structural  - w/ PEB siding & roofing    |       | 45 |   | 100 |   | 26 |   | 4,500 |   | 117,000 |   | $ | 585 |   | $ | 362 |   | $ | 405 |   | $ | 270 |   | $ | 75 | ** ** | **$** | **1,697** | ** ** |
| Process Bldg 1         |   | Structural  - w/ PEB siding & roofing    |       | 20 |   | 80 |   | 21 |   | 1,600 |   | 33,600 |   | $ | 325 |   | $ | 362 |   | $ | 144 |   | $ | 96 |   | $ | 75 | ** ** | **$** | **1,002** | ** ** |
| Process Bldg 2         |   | Structural  - w/ PEB siding & roofing    |       | 60 |   | 170 |   | 30 |   | 10,200 |   | 306,000 |   | $ | 869 |   | $ | 362 |   | $ | 710 |   | $ | 612 |   | $ | 75 | ** ** | **$** | **2,628** | ** ** |
| Warehouse              |   | Pre-Engineered                               |       | 100 |   | 60 |   | 24 |   | 6,000 |   | 144,000 |   | $ | 585 |   | $ | 585 |   | $ | 500 |   | $ | 360 |   | $ | 75 | ** ** | **$** | **2,105** | ** ** |
|                   |   |                                         |       |   |   |   |   |   |   | 191,000 |   | 8,295,600 |   | $ | 10,554 |   | $ | 4,420 |   | $ | 10,842 |   | $ | 9,360 |   | $ | 600 | ** ** | **$** | **35,776** | ** ** |
| **MISCELLANEOUS FEES** |   | **BASIS**                                    |       |   |   |   |   |   |   |   |   |   |   |   |   |   |   |   |   |   |   |   |   |   |   |
| Site Plan Review       |   | 40  Acres                                    | ** ** |   | ** ** |   | ** ** |   | ** ** |   | ** ** |   | ** ** |   | ** ** |   | ** ** |   | ** ** |   | ** ** |   | ** ** | **$** | **275** | ** ** |
| Fencing                |   | 3500  LF                                     | ** ** |   | ** ** |   | ** ** |   | ** ** |   | ** ** |   | ** ** |   | ** ** |   | ** ** |   | ** ** |   | ** ** |   | ** ** | **$** | **250** | ** ** |
| Hard Surface           |   | 200,000  SF                                  | ** ** |   | ** ** |   | ** ** |   | ** ** |   | ** ** |   | ** ** |   | ** ** |   | ** ** |   | ** ** |   | ** ** |   | ** ** | **$** | **2,000** | ** ** |
| Tank Farm - Tank Fee   |   | 7  Tanks @ $75                               | ** ** |   | ** ** |   | ** ** |   | ** ** |   | ** ** |   | ** ** |   | ** ** |   | ** ** |   | ** ** |   | ** ** |   | ** ** | **$** | **525** | ** ** |
|                   |   |                                         |       |   |   |   | ** ** |   | ** ** |   | ** ** |   | ** ** |   | ** ** |   | ** ** |   | ** ** |   | ** ** |   | ** ** | **$** | **38,826** | ** ** |

 

These preliminary numbers donot include the cost of out sourcing some construction/engineering review toEnvirogen

 

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**SCHEDULE 5:      PROPERTY TAX ABATEMENT**

 

**Rochelle Real Estate Tax Abatement program**

 

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

 

1.                                       To qualify abusiness must be newly created, an expansion of an existing industry, or movingto Rochelle from another State or Foreign Country.  A business moving from another location within Illinois does notqualify.

 

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

 

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

 

4.                                       The abatementmay be applied to later expansions and it only applies to any increasedassessed valuation resulting from the expansion.

 

5.                                       The abatementapplies to business that creates the jobs. An industry that locates in a leased facility must receive the abatementbenefits through the lease since the abatement is applied to the real estatetaxes.

 

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

 

7.                                       The GreaterRochelle Economic Development Corp. (GREDCO) board must approve all projectsfor abatement but have the authority to authorize the County Clerk to abate thetaxes if the above guidelines are met.

 

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** **

**SCHEDULE 6:  CITY PROPERTY**

 

LEGAL DESCRIPTION OF THE CITY PROPERTY

 

PART OF THE SOUTHEAST QUARTER OF SECTION 31, TOWNSHIP 40 NORTH,RANGE 2 EAST OF THE THIRD PRINCIPAL MERIDIAN BOUNDED AND DESCRIBED AS FOLLOWS:COMMENCING AT THE NORTHEAST CORNER OF THE SOUTHEAST QUARTER OF SAIDSECTION 31; THENCE SOUTH 88 DEGREES 41 MINUTES 37 SECONDS WEST ALONG THENORTH LINE OF SAID SOUTHEAST QUARTER, A DISTANCE OF 891.14 FEET TO THE POINT OFBEGINNING OF THE HEREINAFTER DESCRIBED TRACT OF LAND; THENCE SOUTH 16 DEGREES21 MINUTES 46 SECONDS EAST PARALLEL WITH THE EASTERLY RIGHT-OF-WAY LINE OF THEBURLINGTON NORTHERN RAILROAD, A DISTANCE OF 2745.32 FEET TO THE SOUTH LINE OFTHE SAID SOUTHEAST QUARTER; THENCE SOUTH 88 DEGREES 43 MINUTES 25 SECONDS WESTALONG SAID SOUTH LINE, A DISTANCE OF 103.57 FEET TO THE EASTERLY RIGHT-OF-WAYLINE OF SAID BURLINGTON NORTHERN RAILROAD; THENCE NORTH 16 DEGREES 21 MINUTES46 SECONDS WEST ALONG SAID EASTERLY RIGHT-OF-WAY LINE, A DISTANCE OF 2697.35FEET TO THE BEGINNING OF A SPIRAL CURVE; THENCE NORTH 16 DEGREES 40 MINUTES 21SECONDS WEST ALONG THE CHORD TO THE SAID SPIRAL CURVE, A DISTANCE OF 47.98 FEETTO THE NORTH LINE OF SAID SOUTHEAST QUARTER; THENCE NORTH 88 DEGREES 41 MINUTES37 SECONDS EAST ALONG SAID NORTH LINE, A DISTANCE OF 103.82 FEET TO THE POINTOF BEGINNING, CONTAINING 6.302 ACRES, MORE OR LESS, ALL SITUATED IN THETOWNSHIP OF DEMENT, THE COUNTY OF OGLE AND THE STATE OF ILLINOIS.

 

 

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