**Exhibit 10.3a**

 

**FIRST AMENDMENT TO REAL ESTATEEXCHANGE AGREEMENT**

 

**                                                                                               **THISFIRST AMENDMENT TO REAL ESTATE EXCHANGE AGREEMENT (this “First Amendment”) isentered into as of the 9th day of July, 2003 by and between DP INDUSTRIAL, LLC(“DP”), and ILLINOIS RIVER ENERGY, L.L.C. (“IRE”).

 

**BACKGROUND**

 

                                                A.                                   DPand IRE entered into a Real Estate Exchange Agreement dated as of April 29,2003 (the “Exchange Agreement”), relating to the exchange of certain landlocated in Ogle County, Illinois, as more particularly described in theExchange Agreement (all of the land involved with such exchange shall becollectively referred to herein as the “Property”).

 

                                                B.                                     DPand IRE desire to amend the Exchange Agreement as set forth below.

 

                                                NOW,THEREFORE, for and in consideration of good and valuable consideration, thereceipt and sufficiency of which are hereby acknowledged, DP and IRE herebyagree that:

 

**TERMS**

 

# 1.                                       DEFINED TERMS. All capitalized terms utilized but not defined in this First Amendmentshall have the meanings ascribed to them in the Exchange Agreement.

# 2.                                       CLOSING DATE. The references to “June 30, 2003” in Section 9 of the Exchange Agreementare hereby changed to “July 18, 2003, or such later date as may be reasonablyagreed upon by DP and IRE”.

# 3.                                       DP ANNEXATION PERIOD. The DP Annexation Period is hereby extended to July 14, 2003.

# 4.                                       IRE ANNEXATION PERIOD. The IRE Annexation Period is hereby extended to July 14, 2003.

# 5.                                       ASSIGNMENT.  IREacknowledges that IRE has assigned the IRE Sale Agreements (but not theExchange Agreement) to James D. Carmichael, an investor with IRE, or any estateplanning trust of James D. Carmichael or his spouse (the “Purchasing Party”;IRE, DP and the Purchasing Party may be hereinafter collectively referred to asthe “Parties”).  IRE represents andwarrants that pursuant to an agreement with the Purchasing Party, IRE has theright to acquire the Property to effectuate the exchange described in theExchange Agreement (as amended hereby). By execution hereof, the Parties acknowledge and agree that the Propertyis encumbered by the Exchange Agreement (as amended hereby), but that althoughDP’s ROFR (as defined in Section 26) applies to the Property, DP acknowledgesthat DP’s ROFR shall not apply to the assignment of IRE’s option agreements or contractsfor the Property to the Purchasing Party or a conveyance from the PurchasingParty to IRE.  DP acknowledges that thepurchase of the Property by the Purchasing Party for the purposes ofeffectuating 

 

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#                                                 the exchange of property contemplated bythe Exchange Agreement shall qualify as IRE purchasing such property.

# 6.                                       Conditions to Exchange. IRE confirms that all conditions to IRE obligations set forth in theExchange Agreement have been satisfied except for the conditions relating to(i) DP Industrial entering into the DP Annexation Agreement with the Citybefore the expiration of the DP Annexation Period, (ii) IRE finalizing the IREAnnexation Agreement with the City, (iii) the subsequent payment to IRE of thefunds described in Section 5 of the Exchange Agreement, (iv) DP’s closingdelivery obligations described in Section 12(b) of the Exchange Agreement, and (v) the Title Company issuing toIRE the IRE Title Policy.  Pursuant tothe Exchange Agreement, the form of the DP Annexation Agreement is subject toIRE’s review and approval, such approval not to be unreasonably withheld,conditioned or delayed.  IRE herebyapproves the form of the July 2, 2003 DP Annexation Agreement distributed toIRE’s counsel Charles Cole on July 2, 2003. IRE also hereby approves the form of the Rider to the DP AnnexationAgreement distributed to the City and DP’s counsel by IRE’s counsel CharlesCole on July 2, 2003.  As long as theCity approves the DP Annexation Agreement and Rider to DP Annexation Agreementin form substantially similar to the drafts referenced above, IRE will approvethe DP Annexation Agreement and Rider to the DP Annexation Agreement.  Pursuant to the Exchange Agreement, the formof the IRE Annexation Agreement is subject to DP’s review and approval, suchapproval not to be unreasonably withheld, conditioned or delayed.  DP hereby approves the form of the IREAnnexation Agreement (less the exhibits thereto) distributed to DP’s counselBrian Sedlak on  July 11, 2003.  DP also hereby approves the form of theRider to the IRE Annexation Agreement distributed to the City and IRE’s counselon July 11, 2003.  As long as the Cityapproves the IRE Annexation Agreement and Rider to IRE Annexation Agreement inform substantially similar to the drafts referenced above, DP will approve theIRE Annexation Agreement and Rider to the IRE Annexation Agreement; provided,however, in the event the Exchange Agreement expires or terminates and DPacquires any portion of the property described in the DP Sale Agreements andthe Purchasing Party or IRE purchases any portion of the Property andconstructs an ethanol plant on the Property, the benefits and burdens on theProperty set forth in Section 31 of the Exchange Agreement shall apply to theProperty even after such termination.

# 7.                                       FULL FORCE AND EFFECT. DP and IRE acknowledge and agree that the Exchange Agreement, asmodified by this First Amendment, remains in full force and effect inaccordance with its terms.  DP and IREhereby ratify the Exchange Agreement (as amended hereby) and agree to be boundby the terms and provisions of the Exchange Agreement (as amended hereby).  This Amendment shall be binding upon DP andIRE upon the execution of this Amendment by DP and IRE without the execution byPurchasing Party, however, IRE shall use all reasonable efforts to obtainPurchasing Party's signature as soon as possible.

# 8.                                       SURVIVAL.  Theobligations, agreements, and representations in this Amendment shall survivethe closing or expiration or termination of the Exchange Agreement.

# 9.                                       COUNTERPARTS.  This First Amendment may be executed in counterparts and all suchcounterparts shall constitute one agreement binding upon all the parties.

 

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# 10.                                 FACSIMILE.   This FirstAmendment transmitted by via facsimile shall be treated in all manner andrespects as an original document and any signature thereon shall be consideredan original signature and shall have the same binding legal effect as theoriginal document.

 

[SIGNATURE PAGE FOLLOWS]

 

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                                                                                                INWITNESS WHEREOF, authorized representatives of DP and IRE have executed anddelivered this First Amendment as of the date first above written.

 

 
|   | **IRE:**                                                                                                                                       |
|--------|------------------------------------------------------------------------------------------------------------------------------------------------|
|   |                                                                                                                                           |
|   | ILLINOIS RIVER  ENERGY, L.L.C.                                                                                                                 |
|   |                                                                                                                                           |
|   | By:                                                                                                                                            | /s/ Floyd  Schultz |
|   | Name:                                                                                                                                          | Floyd Schultz |
|   | Title:                                                                                                                                         | President |
|   |                                                                                                                                           |   |
|   | **DP:**                                                                                                                                        |   |
|   |                                                                                                                                           |   |
|   | 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/ Aaron Paris |
|   | Name:                                                                                                                                          | Aaron Paris |
|   | Title:                                                                                                                                         | Authorized  Signatory |
|   |                                                                                                                                           |   |
|   | Purchasing Party  hereby signs this Amendment to show that he is bound by the terms of Section  5 of this Amendment in the same manner as IRE. |
|   |                                                                                                                                           |   |
|        |                                                                                                                                                |  |  |

 

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