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Exhibit 10.16  


 
 

TRINITY INDUSTRIES LEASING COMPANY
  RAILROAD CAR LEASE AGREEMENT    
  


        This Agreement, made this 5th day of July, 2002, between Trinity Industries Leasing Company, a Delaware
corporation, with its principal office at One Tower Lane, 29th Floor, Oak Brook Terrace, Illinois 60181, (hereinafter called "Lessor") and Dakota Ethanol
LLC a South Dakota limited liability corporation, with its principal office at 46269 SD Highway 34, Wentworth, South Dakota 57075-6934 (hereinafter called
"Lessee"). 


        In
consideration of the mutual terms and conditions hereinafter set forth, the parties hereto hereby agree as follows: 


ARTICLE 1: LEASE AGREEMENT  


        Lessor agrees to lease to Lessee, and Lessee agrees to lease from Lessor, the cars shown on each Rider hereto and such additional Riders as may be added from time
to time (each such Rider and together with this Agreement shall be collectively referred to as the Lease") by agreement of the parties and signed by their duly authorized representative (all such cars
being hereinafter referred to as the "cars"). Each Rider shall set forth a brief description of the car or cars covered thereby, including such facts as the number of cars, the AAR or DOT
specifications, rental charges, term throughout which the car or cars shall remain in Lessee's service and such other information as may be desired by both parties. Lessor and Lessee agree that each
Rider hereto shall constitute a separate Lease which incorporates the terms of this Agreement. Each Rider shall be severable from any other cars or riders relating to this Agreement and shall become a
separate lease which is separately transferable for all purposes. It is the intent of all parties to this Agreement to characterize this Agreement as a true lease. 


ARTICLE 2: DELIVERY  


        Except as otherwise provided in each Rider hereto, Lessor agrees to deliver each car to Lessee, freight charges collect, in the yard of the delivering line at the
point specified by the Lessee, and Lessee agrees to accept such delivery. The obligations of the Lessor to deliver the cars shall be excused, and Lessor shall not be liable, for any causes beyond the
reasonable control of Lessor (including, but not limited to, delays caused by fire, labor difficulties, delays of carriers and materials suppliers, governmental authority, late delivery by the
manufacturer of the cars or late delivery by a prior lessee) and, in the event of a delay in such delivery, Lessor shall deliver the cars to Lessee as soon as reasonably possible thereafter. 


ARTICLE 3: CONDITION OF CARS—ACCEPTANCE  


        All cars delivered under this Lease shall be in satisfactory condition for movement in the normal interchange of rail traffic and shall otherwise comply with the
description and specifications contained in the applicable Rider; but Lessee shall be solely responsible for determining that cars are in proper condition for loading and shipment, except for those
responsibilities which, under applicable law, have been assumed by the railroads. Lessee shall inspect the cars promptly after they are delivered and shall notify Lessor in writing within five days
after delivery of its rejection of any car, and the specific reasons for such rejection. Failure by the Lessee to inspect the cars within five days after delivery, and/or the successful loading of any
car by Lessee, shall constitute acceptance of such car or cars, as the case may be, by Lessee and shall be conclusive evidence of the fit and suitable condition of such car or cars. At Lessor's
request, Lessee shall deliver to Lessor an executed Certificate of Acceptance in the form of Exhibit A with respect to all cars. 


        If
Lessee rejects any car, Lessor shall have the right to have the rejected car inspected by an inspector acceptable to both Lessor and Lessee. The cost of such inspection will be paid
by Lessor if the cause for rejection is affirmed by the inspector, otherwise such cost will be borne by Lessee. The 





 




Lessee shall be deemed to have accepted any car for which the inspector determines that good cause for rejection did not exist. The decision of the inspector shall be final and binding upon the
parties. 


        Lessee's
acceptance, however affected, shall be deemed effective as of the delivery date and the monthly rentals as hereinafter set forth shall accrue from the delivery date. Such
acceptance shall conclusively establish that such cars conform to the applicable standards set forth in the Rider(s) and the Interchange Rules. 


ARTICLE 4: RENTALS  


        Lessee agrees to pay to Lessor for the use of each car the monthly rental set forth in the Rider applicable to such car from the date such car is delivered to
Lessee until such car is returned to Lessor, as hereinafter provided in Article 18. The rental shall be payable in U.S. Dollars and in advance on or before the first day of each calendar month
(provided, however, that the rental for each car for the month in which it is delivered shall be prorated for the number of days, including the day of delivery, remaining in such month at a daily rate
based upon a 365 day year and shall be payable on or before the first day of the next succeeding month) to Lessor at 21038 Network Place, Chicago, Illinois
60673-1210, or at such other address as Lessor may specify by notice to Lessee. Except as set forth in this Lease (including without limitation, the provisions of
Article 11) rental shall be paid without deduction, set-off or counterclaim. 


ARTICLE 5: MILEAGE ALLOWANCE  


        Lessor shall collect all mileage earned by the cars during the lease term and shall credit to the rental of Lessee, such mileage earned by the cars while in the
service of Lessee, as and when received from the railroads according to, and subject to, all rules of the tariffs of the railroads. 


ARTICLE 6: TERM  


        This Lease shall be effective as dated and will expire upon the completion of the leasing arrangement shown on the attached Riders of the last car or cars covered
hereunder. The Lease term, with respect to all cars covered by a particular Rider, shall commence on the average date of delivery of the cars covered by such Rider; and shall terminate as specified in
such Rider, unless sooner terminated in accordance with provisions of this Lease. 


ARTICLE 7: USE AND POSSESSION  


        Throughout the continuance of this Lease so long as Lessee is not in default under this Lease, Lessee shall be entitled to possession of each car from the date
the lease becomes effective as to such car; and shall use such car only in the manner for which it was designed and intended, and so as to subject it only to ordinary wear and tear, and on its own
property or lines in the usual interchange of traffic; provided, however, that Lessee agrees that the cars shall at all times be used: (a) in conformity with all Interchange Rules;
(b) in compliance with the terms and conditions of this Lease; (c) predominantly in the continental limits of the United States, provided however, in no event shall more that forty
percent (40%) of the cars (as determined by mileage records and measured annually on a calendar year basis) be used outside of the contiguous United States at the same time. 


        In
the event any car is used outside of the continental United States, for any reason whatsoever, Lessee shall assume full responsibility for all costs, taxes, duties or other charges
incidental to such use including costs incurred in returning car to the continental United States. 


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ARTICLE 8: EMPTY MILEAGE INDEMNIFICATION  


        Lessee agrees that it will use its best efforts to so use the cars that their total mileage under load will equal or exceed their mileage empty on each railroad
over which the cars move. Should the empty mileage exceed the loaded mileage, Lessee shall pay to Lessor for such excess at the rate and at the time established by the tariff of the railroad on which
such excess of empty miles has accrued. For the purpose of this paragraph, the railroad mileage reports received by Lessor shall be prima facie evidence of the facts reported therein. 


ARTICLE 9: ADDITIONAL CHARGES BY RAILROADS  


        Lessee agrees to use the cars, upon each railroad over which cars shall move, in accordance with the then prevailing tariffs to which each railroad shall be a
party; and if the operation or movements of any of the cars during the term hereof shall result in any charges being made against Lessor by any such railroad, Lessee shall pay to Lessor the amount of
such charges within the period prescribed by and at the rate and under the conditions of the then prevailing tariffs. Lessee agrees to indemnify Lessor against any such charges, and shall be liable
for any switching, demurrage, track storage, detention or special handling charges imposed on any car during the term hereof. 


ARTICLE 10: LESSEE'S RIGHT TO TRANSFER OR SUBLEASE  


        Lessee shall not transfer, sublease or assign any car or its interests and obligations pursuant to the Lease, nor shall a transfer, sublease or assignment by
operation of the law or otherwise of Lessee's interest in the cars or this Lease be effective against Lessor without Lessor's prior written consent. No transfer, sublease or assignment of the Lease,
or of any car, shall relieve Lessee from any of its obligations to Lessor under this Lease. 


        Notwithstanding
the foregoing paragraph, Lessee shall have the right to sublease any of the cars for single trips to its customers or suppliers, and to cause each car so subleased to be
boarded or placarded with the name of the sublessee in accordance with the provisions of the demurrage tariffs
lawfully in effect, where the sole purpose of such subleasing is to obtain an exemption from demurrage for said cars so subleased; provided, however, that notwithstanding any such sublease, Lessee
shall continue to remain liable to Lessor for the fulfillment of Lessee's obligations under this Lease; and providing further, that Lessor shall have the right, at any time, to withdraw the privilege
of subleasing hereinabove granted to Lessee. 


ARTICLE 11: MAINTENANCE RESPONSIBILITY  


        Lessor agrees to maintain the cars in good condition and repair according to the Interchange Rules of the Association of American Railroads (AAR). Lessee agrees
to notify Lessor promptly when any car is damaged or in need of repair, and to forward such cars and any other cars subject to this Lease to shops as directed by Lessor for repairs and/or periodic
maintenance and inspections. No repairs to any of the cars shall be made by Lessee without Lessor's prior written consent, except that Lessee shall, at its expense, replace any removable part (dome
covers, hatch covers, outlet caps, etc.) if lost or broken. Replacement or repair by Lessee of any parts, equipment and/or accessories on any of the cars shall be with parts, equipment and/or
accessories that are of like kind and of at least equal quality to those being replaced or repaired, unless otherwise agreed in writing by Lessor. 


        On
tank cars, Lessee agrees that it will assume the responsibility for the maintenance and replacement of angle valves and check valves and, if such cars are so equipped, thermometer
wells, gauging devices, regulator valves, safety heads and top unloading valves. 



        On
hopper cars, Lessee will be responsible for inspection and cleaning of the operating mechanisms of the outlets, hatches and special fittings on such cars leased herein. Further, any
damage 


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to such outlets, hatches, special fittings or the operating mechanisms will be repaired for the account of the Lessee. 


        When
a car is placed in a private shop for maintenance or repair, the rental charges shall cease on date of arrival in the shop, except in the case where a car arrives without advance
notice of defects from Lessee, in which case rental charges will cease on communication of such notice of defects to Lessor from Lessee, and shall be reinstated on the date that the car is forwarded
from the shop or on the date that the car is ready to leave, awaiting disposition instructions from Lessee. If any repairs are required as a result of the misuse by or negligence of Lessee or its
consignee, agent or sublessee or while on a railroad that does not subscribe to, or fails to meet its responsibility under the Interchange Rules of the AAR, or while on any private siding or track or
any private or industrial railroad, the rental charges shall continue during the repair period, and Lessee agrees to pay Lessor for the cost of such repairs. 


ARTICLE 12: LOSS OR DESTRUCTION  



        If any of the cars shall be completely destroyed, or if the physical condition of any car shall become such that the car cannot be operated in railroad service,
as determined by the parties, then Lessor may, at its option, cancel this Lease as to such car as of the date on which such event occurred, or may substitute another car within a reasonable period of
time. Lessee shall notify Lessor of the occurrence of any such event within two (2) days of such event. In the event of such substitution, the substituted car shall be held pursuant to all the
terms and conditions of this Lease. Lessee agrees that if a car is lost or destroyed or is in such physical condition that it cannot be operated in railroad service by reason of misuse or negligence
of Lessee or its consignee, agent or sublessee or while on any private siding or track or any private or industrial railroad, Lessee will pay Lessor, in cash, the depreciated value of such car as
determined by Rule #107 of the AAR Interchange Rules within ten (10) days following a request by Lessor for such payment. Lessor and Lessee shall cooperate with and assist each other in any
reasonable manner requested, but without affecting their respective obligations under this Article or Article 22, to establish proper claims against parties responsible for the loss,
destruction of or damage to, the cars. 


ARTICLE 13: LOSS OF COMMODITY  


        Lessor shall not be liable for any loss of, or damage to, commodities, or any part thereof, loaded or shipped in the cars however such loss or damage shall be
caused or shall result. Lessee agrees to assume responsibility for, to indemnify Lessor against, and to save it harmless from any such loss or damage or claim therefor. 


ARTICLE 14: DAMAGE TO CAR BY COMMODITY  


        Lessee shall be liable for damage to any car covered by this Lease, whether or not due to Lessee's negligence, if caused by or as a result of the commodity loaded
therein. Lessee assumes responsibility for such damage to any car, including without limitation, as applicable, to the tank, fittings or appurtenances thereto, including the interior lining for tanks
so equipped. Lessee will use said cars for the transportation and handling of commodities which will not injure the cars. 


ARTICLE 15: ALTERATION AND LETTERING  


        Lessee will preserve the cars in good condition and will not in any way alter the physical structure of the cars without the advance approval, in writing, of the
Lessor. Lessee shall place no lettering or marking of any kind upon the cars without Lessor's prior written consent, provided however, that Lessee may cause said cars to be stenciled, boarded, or
placarded with letters not to exceed two inches 


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(2") in height to indicate to whom the cars are leased and with commodity stencils per AAR or DOT specifications. 


ARTICLE 16: LININGS AND COATINGS  


        The application, maintenance and removal of interior protective linings and coatings in cars so equipped is to be at the expense of the Lessee unless otherwise
specified on the Rider. Commodity or mechanical damage to such linings or coatings shall be for the account of the Lessee. 


ARTICLE 17: INTERIOR PREPARATION FOR COMMODITIES  


        Any cleaning or special preparation of the interior of cars to make them suitable for the shipment of commodities by or for Lessee during the term of the lease
shall be done at Lessee's expense unless otherwise agreed. 


ARTICLE 18: RETURN OF CARS—CLEANING  



        At the expiration of the lease term as provided in the Riders, Lessee shall, at its expense, return the cars to Lessor at the location and to the agent selected
by the Lessor empty, clean and free from residue, and in the same good condition as the cars were in when delivered, except for normal wear and tear. At the expiration, should car cleaning be
required, the Lessee shall bear the full cost of cleaning and the rental shall continue until the car is clean. 


ARTICLE 19: MODIFICATIONS  


        Lessor and Lessee agree that if, at any time after the effective date of any Rider, changes in car design or equipment are required by the AAR, DOT, FRA or any
other governmental authority, Lessor may, at its option, perform all modifications so ordered and that the cost of those modifications shall be reflected in an increase in the monthly rental rate per
car according to the rental escalation formula shown on the Rider for that car. 


ARTICLE 20: HIGH MILEAGE AND WEIGHT LIMITATION  


        Each car is limited to the number of total loaded and empty miles per calendar year shown on the Rider and is subject to a surcharge also shown on the Rider for
all excess miles. 


        Lessee
shall not exceed the weight limitations prescribed for operation of cars in unrestricted interchange service as set forth under Interchange Rule 91 without Lessor's prior
written consent. 


ARTICLE 21: USE OF CARS ON CERTAIN ROADS UNDER AAR CIRCULAR OT-5  


        Upon the written request of Lessee (which request shall name the railroads involved) Lessor shall use reasonable efforts to obtain from each named railroad
authority to place the cars (other than tanks) in service under the provisions of AAR Circular OT-5 as promulgated by the Association of American Railroads and all supplements thereto and
reissues thereof (such authority hereinafter called "consent(s)"). Lessee shall furnish to Lessor such information as is necessary to apply for and obtain such consents. Lessor, however, shall not be
liable for failure to obtain such consents for any reason whatsoever and this Lease shall remain in full force and effect notwithstanding any failure of Lessor to obtain such consents. 


ARTICLE 22: INDEMNIFICATIONS  


        Lessee shall defend (if such defense is tendered to Lessee), indemnify and hold Lessor harmless from and against and does hereby release Lessor from all claims,
suits, liabilities, losses, damages, costs and expenses, including attorney's fees, in any way arising out of, or resulting from, the condition, 


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storage, use, loss of use, maintenance or operation of the cars, or any other cause whatsoever except to the extent the same results from Lessor's negligence or except to the extent a railroad has
assumed full responsibility and satisfies such responsibility. 


        Except
as otherwise provided herein, Lessor shall defend, indemnify and hold Lessee harmless form and against all claims, suits, liabilities, losses, damages, costs and expenses,
including attorney's fees, arising out of, or resulting from any negligent act or omission of Lessor. 


ART1CLE 23: TAXES AND LIENS  


        Lessor shall be liable for and pay all Federal, State or other governmental property taxes assessed or levied against the cars, except that (I) Lessee
shall be liable for and pay such taxes when cars bear reporting marks and numbers other than Lessor's and (ii) Lessee shall be liable at all times for and shall pay or reimburse Lessor for the
payment of any sales, use, leasing, operation, excise, gross receipts and other taxes with respect to the cars, together with any penalties, fines or interest thereon and all duties, imposts, taxes,
investment tax credit reductions and similar charges arising out of the use of cars outside the continental United States. 


        Lessee
acknowledges and agrees that by the execution of this Lease it does not obtain, and by payments and performance hereunder it does not, and will not, have or obtain any title to
the cars or any property right or interest therein, legal or equitable, except solely as Lessee hereunder and subject to all of the terms hereof. Lessee shall keep the cars free from any liens or
encumbrances created by or through Lessee. 


ARTICLE 24: DEFAULT AND REMEDIES  


        If Lessee defaults in the payment of any sum of money to be paid under this Lease and such default continues for a period of ten (10) days after written
notice to Lessee of such default or if Lessee fails to perform any covenant or condition required to be performed by Lessee, which failure shall not be remedied within ten (10) days after
notice thereof by Lessor to Lessee or if Lessee shall dissolve, make or commit any act of bankruptcy or if any proceeding under any bankruptcy or insolvency statute or any laws relating to relief of
debtors is commenced by Lessee or if any such proceeding is commenced against Lessee and same shall not have been removed within thirty (30) days of the date of the filing thereof or if a
receiver, trustee or liquidator is appointed for Lessee or for all or a substantial part of Lessee's assets with Lessee's consent or, if without Lessee's consent, the same shall not have been removed
within thirty (30) days of the date of the appointment thereof or if an order, judgment or decree is entered by a court of competent jurisdiction and continues unpaid and in effect for any
period of thirty (30) consecutive days without a stay of execution or if a writ of attachment or execution is levied on any car and is not discharged within ten (10) days thereafter,
Lessor may exercise one or more of the following remedies with respect to the cars: 



	1.
	Immediately
terminate this Lease and Lessee's rights hereunder;



	2.
	Require
Lessee to return the cars to Lessor at Lessee's expense, and if Lessee fails to so comply, Lessor may take possession of such cars without demand or notice and without court
order or legal process. Lessee hereby waives any damages occasioned by such taking of possession, whether or not Lessee was in default at the time possession was taken, so long as Lessor reasonably
believes that Lessee was in default at such time. Lessee acknowledges that it may have a right to notice of possession and the taking of possession with a court order or other legal process. Lessee,
however,
knowingly waives any right to such notice of possession and the taking of such possession without court order or legal process;



	3.
	Lease
the cars to such persons, at such rental, and for such period of time as Lessor shall elect. Lessor shall apply the proceeds from such leasing, less all costs and expenses
incurred in 



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the
recovery, repair, storage and renting of such cars, toward the payment of Lessee's obligations hereunder. Lessee shall remain liable for any deficiency, which, at Lessor's option, shall be paid
monthly as suffered or immediately, or at the end of the Lease term as damages for Lessee's default; 



	4.
	Bring
legal action to recover all rent or other amounts then accrued or thereafter accruing from Lessee to Lessor under any provision hereunder;



	5.
	Pursue
any other remedy which Lessor may have. 




        Each
remedy is cumulative and may be enforced separately or concurrently. In the event of default, Lessee shall pay to Lessor upon demand all costs and expenses, including reasonable
attorneys' fee expended by Lessor in the enforcement of its rights and remedies hereunder, and Lessee shall pay interest on any amount owing to Lessor from the time such amount becomes due hereunder
at a rate per annum equal to three percentage points above the prime rate of Chase Manhattan Bank (or its successor), such rate to be reduced, however, to the extent it exceeds the maximum rate
permitted by applicable law. In addition, Lessee shall, without expense to Lessor, assist Lessor in repossessing the cars and shall, for a reasonable time, if required, furnish suitable trackage space
for the storage of the cars. 


        If
Lessee fails to perform any of its obligations hereunder, Lessor, at Lessee's expense, and without waiving any rights it may have against Lessee for such nonperformance, may itself
render such performance. Lessee shall reimburse Lessor on demand for all sums so paid by Lessor on Lessee's behalf, together with interest at a rate equal to three percentage points above the prime
rate of Chase Manhattan Bank(or its successor), such rate to be reduced, however, to the extent it exceeds the maximum rate permitted by applicable law. 


ARTICLE 25: LESSOR'S RIGHT TO ASSIGN, SUBORDINATION  


        All rights of Lessor hereunder may be assigned, pledged, mortgaged, leased, transferred or otherwise disposed of, either in whole or in part, and/or Lessor may
assign, pledge, mortgage, lease, transfer or otherwise dispose of title to the cars, with or without notice to Lessee. As a condition to any such assignment, pledge, mortgage, lease, transfer or other
disposition, Lessor shall have entered into a
management agreement with the assignee, pledgee, mortgagee, lessor, or other holder of legal title to or security interest in the cars for purposes of allowing such assignee, pledgee, mortgagee,
lessor or other holder of legal title to or security interest in the cars to perform Lessee's obligations hereunder. In the event of any such assignment, pledge, mortgage, lease, transfer or other
disposition, this Lease and all rights of Lessee hereunder or those of any person, firm or corporation who claims or who may hereafter claim any rights in this Lease under or through Lessee, are
hereby made subject and subordinate to the terms, covenants and conditions of any assignment, pledge, mortgage, lease, or other agreements covering the cars heretofore or hereafter created and entered
into by Lessor, its successors or assigns and to all of the rights of any such assignee, pledgee, mortgagee, lessor, transferee or other holder of legal title to or security interest in the cars.
During the term of this Lease no such assignee, pledgee, mortgagee, lessor, transferee or other holder of legal title to or security interest in the cars shall interfere with the quiet use, possession
and enjoyment of the cars by Lessee provided that no event of default or termination event (however described) shall have occurred under such assignment, pledge, mortgage, lease or other agreement and
provided that no event of default or termination event (however described) has occurred under this Lease and provided further that the exercise by assignee, pledgee, mortgagee, lessor, transferee or
other holder of legal title to or security interest in the cars of their respective rights under or in connection with such assignment, pledge, mortgage, lease or other agreement or this Lease shall
not constitute such an interference. Lessee hereby agrees that Lessor or such assignee, pledgee, mortgagee, lessor, transferee or other holder of legal title to or security interest in the cars may
terminate this Lease simultaneously with the 


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termination of any such assignment, pledge, mortgage, lease or other agreement and that upon such termination, Lessee shall redeliver the cars to Lessor. Any sublease or assignment of the cars
permitted by this Lease that is entered into by Lessee or its successors or assigns shall contain language which expressly makes such assignment or sublease subject to the subordination contained
herein. At the request of Lessor or any assignee, pledgee, mortgagee, lessor, transferee or other holder of the legal title to or security interest in the cars, Lessee, at Lessor's expense, shall
letter or mark the cars to identify the legal owner of the cars and, if applicable, place on each side of each car, in letters not less than one inch in height, the words "Ownership Subject to a
Security Lease Filed with the Surface Transportation Board" or other appropriate words reasonably requested. 


        In
the event that Lessor assigns its interest in this Lease, Lessee, at the request of Lessor, shall execute and deliver to Lessor an Acknowledgment of Assignment of Lease in form
satisfactory to Lessor and upon such request and execution furnish to Lessor an opinion of counsel that such Acknowledgment has been duly authorized, executed and delivered by Lessee and constitutes a
valid, legal and binding instrument, enforceable in accordance with its terms. 


ARTICLE 26: WARRANTIES  


        LESSOR MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, AS TO THE CONDITION, MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE OR ANY OTHER MATTER
CONCERNING THE CARS. LESSEE HEREBY WAIVES ANY CLAIM IT MIGHT HAVE AGAINST LESSOR FOR ANY LOSS, DAMAGE OR EXPENSE CAUSED BY THE CARS OR BY ANY DEFECT THEREIN. Lessee shall be solely responsible for
determining that the specifications and design of any car are appropriate for the commodities loaded therein. During the period of any lease hereunder in which Lessee renders faithful performance of
its
obligations, Lessor hereby assigns to Lessee any factory or dealer warranty, whether express or implied, or other legal right Lessor may have against the manufacturer in connection with defects in the
cars covered by this Lease. 


ARTICLE 27: RIGHT OF INSPECTION AND NOTICES  


        Lessor, or its assignee, shall, at any reasonable time and without interfering with Lessee's operations, have the right to inspect the cars by its authorized
representative wherever they may be located for the purpose of determining compliance by Lessee with its obligations hereunder. Lessee shall use its best effort to obtain permission, if necessary, for
Lessor or its representative to enter upon any premises where the cars may be located. 


        Lessee
shall notify Lessor, in writing, within three (3) days after any attachment, lien (including any tax and mechanics' liens) or other judicial process attaches to the cars. 


ARTICLE 28: MISCELLANEOUS  


        This Lease, together with any and all exhibits attached hereto, constitutes the entire agreement between Lessor and Lessee, and it shall not be amended, altered
or changed except by written agreement signed by the parties hereto. No waiver of any provision of this Lease or consent to any departure by Lessee therefrom shall be effective unless the same shall
be in writing, signed by both parties and then such waiver of consent shall be effective only in the specific instance and for the purpose for which it was given. 


        1.    Governing Law    



This
Lease shall be interpreted under and performance shall be governed by the laws of the State of Texas. 



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        2.    Conflict with Interchange Rules    



In
the event the Interchange Rules conflict with any provision of this Lease, this Lease shall govern. 




        3.    Exhibits    



All
exhibits attached hereto are incorporated herein by this reference. 




        4.    Payments    



All
payments to be made under this Lease shall be made at the addresses set forth in Article 4. 




        5.    Severability    



If
any term or provision of this Lease or the application thereof shall, to any extent, be invalid or unenforceable, such invalidity or unenforceability shall not affect or render invalid or
unenforceable any other provision of this Lease, and this Lease shall be valid and enforced to the fullest extent permitted by law. 




        6.    Headings    



The
headings that have been used to designate the various Sections and Articles hereof are solely for convenience in reading and ease of reference and shall not be construed in any event or manner as
interpretative or limiting the interpretation of the same. 




        7.    Governmental Laws    



Lessee
shall comply with all governmental laws, rules, regulations, requirements and the Interchange Rules (herein collectively referred to as the "Rules") with respect to the use, operation and
maintenance of any interior lading protective devices, special interior linings or removable parts. Lessee, at its expense, shall further comply with the Rules in the event such Rules require a change
or replacement of any equipment or appliance on the cars or in case any additional or other equipment or appliance is required to be installed on the cars. 




        8.    Survival    



All
indemnities contained in this Lease shall survive the termination hereof. In addition, the obligation to pay any deficiency, as well as the obligation for any and all other payments by Lessee to
Lessor hereunder shall survive the termination of this Lease or the lease contained herein. 



ARTICLE 29: ADDRESSING OF NOTICES  



        Any notice required or permitted hereunder shall be in writing and shall be delivered to the respective parties hereto by personal delivery thereof or by
telegram, telex, telecopier or deposit in the United States mail as a certified or registered matter, return receipt requested, postage prepaid, and addressed to the respective parties as follows,
unless otherwise advised in writing. 



	Lessee to Lessor:	 	Lessor to Lessee:
	

TO:	
 	

Trinity Industries Leasing Company

One Tower Lane—29th Floor

Oak Brook Terrace, Illinois 60181	
 	

Dakota Ethanol LLC

P.O. Box 100

Wentworth, South Dakota 57075-0100





	

ATTENTION:	
 	

Thomas C. Jardine

Vice President—Portfolio Management	
 	

ATTENTION:	
 	

Dean Frederickson

General Manager






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ARTICLE 30: ADMINISTRATION OF LEASE  


        Lessee agrees to make available to Lessor information concerning the movement of the cars reasonably required for the efficient administration of this Lease. 



        Lessee
agrees to cooperate with Lessor for the purpose of complying with any reasonable requirements of any lender, the Surface Transportation Board or the provisions of Article 9
of the Uniform Commercial Code provided such cooperation does not materially affect the rights of liabilities or Lessee hereunder. 


ARTICLE 31: OPINION OF COUNSEL  


        Lessee, on or before the execution of this Lease, shall furnish to Lessor an opinion of Lessee's counsel, satisfactory to counsel for Lessor and in form and
substance satisfactory to such counsel, that as of the date of the Lease: 



	1.
	Lessee
is a corporation duly incorporated, validly existing, and in good standing under the laws of the State of and is either duly qualified to do business and is in good standing in
such other jurisdictions in which the business and activities of Lessee require such qualification or its failure to so qualify in such other jurisdiction will not have a material adverse impact on
this Lease.



	2.
	Lessee
has full corporate power to enter into this Lease.



	3.
	The
Lease has been duly authorized, executed and delivered by Lessee and constitutes a valid, legal and binding agreement, enforceable in accordance with its terms.



	4.
	No
approval is required by Lessee from any governmental or public body or authority with respect to the entering into or performance of this Lease.



	5.
	The
entering into and performance of this Lease will not conflict with, or result in a breach of, the terms, conditions or provision of any law or any regulations, order, injunction,
permit, franchise or decree of any court or governmental instrumentality.



	6.
	The
entering into and performance of this Lease will not conflict with, or result in a breach of, the terms, conditions or provisions of any indenture, agreement or other instrument to
which Lessee is party or by which it or any of its property is bound. 




        IN
WITNESS WHEREOF, the parties hereto have caused this instrument to be executed and delivered as of the        day
of                        , 2002. 



	

LESSOR: TRINITY INDUSTRIES LEASING COMPANY	
 	

 
	

By:	
 	

/s/  THOMAS C. JARDINE      
 Thomas C. Jardine

Vice President	
 	

 
	ATTEST:	 	 
	

By:	
 	

/s/  M      
 Secretary	
 	

 



10





 

	

LESSEE: DAKOTA ETHANOL LLC	
 	

 
	

By:	
 	

/s/  DEAN FREDRICKSON      
 Dean Fredrickson

General Manager	
 	

 
	

ATTEST:	
 	

 
	

By:	
 	

/s/  ALAN MAY      
	
 	

 





THE
STATE OF TEXAS 


COUNTY
OF DALLAS 


        Before
me, the undersigned, a Notary Public in and for said County and State, on this day personally appeared Thomas C. Jardine, known to me to be the person and officer whose name is
subscribed to the foregoing instrument, and acknowledged to me that the same was the act of the said Trinity Industries Leasing Company, a corporation, and that he executed the same as the act of such
corporation for the purposes and consideration therein expressed, and in the capacity therein stated. 


        Given
under my hand and seal of office this 8th day of July, 2002. 



	/s/  BRANDIE HOWARD      
 Notary Public	 
	My Commission Expires:	12-28-05
	 





THE
STATE OF SOUTH DAKOTA 


COUNTY
OF LAKE 


        Before
me, the undersigned, a Notary Public in and for said County and State, on this day personally appeared Dean Frederickson, known to me to be the person and officer whose name is
subscribed to the foregoing instrument, and acknowledged to me that the same was the act of the said Dakota
Ethanol LLC, a limited liability corporation, and that he executed the same as the act of such corporation for the purposes and consideration therein expressed, and in the capacity therein stated. 


        Given
under my hand and seal of office this 29 day of July 2002. 



	/s/  PATRICIA M. LOGAN      
 Notary Public	 
	My Commission Expires:	07/17/2004
	 




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EXHIBIT A    
    
    CERTIFICATE OF ACCEPTANCE OF RAILROAD CAR    
  



        This Certificate relates to the railroad cars listed below leased by Trinity Industries Leasing Company, to Dakota Ethanol LLC under a Lease Agreement for fifteen
(15) railroad cars dated July 4, 2002 into which this certificate is incorporated (by Article 3 thereof). 


Railcar Numbers  



	TILX	 	through	 	 
	 	
	 	
	 












 


        Lessee
hereby certifies that the railcars listed above were delivered to and received by Lessee, inspected, determined to be acceptable under the applicable standards (set forth in
Article 3 of the Lease Agreement); and Lessee hereby certifies its acceptance of the railcars as of            



	

LESSEE: DAKOTA ETHANOL LLC	
 	

 
	

BY:	
 	

 	
 	

 
	 	 	
	 	 





	TITLE:	 	 	 	 
	 	 	
	 	 




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   RIDER ONE (1) TO RAILROAD CAR LEASE AGREEMENT  


        Effective this 5th day of July, 2002, this Rider shall become a part of the Railroad Car Lease Agreement between Trinity Industries
Leasing Company, Lessor, and, Dakota Ethanol LLC, Lessee, dated July 5, 2002 and the cars described herein shall be
leased to Lessee, subject to the terms and conditions in said Railroad Car Lease Agreement, during the term and for the rental shown below: 



	Number of Cars
	 	Type and Description
	 	Approximate Capacity (cubic feet)
	 	Base Monthly Rental (Per Car)

	15	 	Covered quadruple hopper car equipped with trough hatches and gravity discharge gates.

Car numbers to be assigned at a later date.	 	6,351	 	$	433.00





        Delivery & Acceptance—The cars shall be delivered to, and accepted by, Lessee at Eagle Pass, Texas. Rental charges
shall commence upon such acceptance, provided however that Lessor shall prepay freight charges from Eagle Pass, Texas to the Dakota Ethanol LLC facility located at Wentworth, South Dakota. 


        Return of Cars—Notwithstanding Article 4, Rental charges shall cease as to each car upon the date Lessee tenders return
shipping instructions to the railroad (with a copy to Lessor) serving the final unloading point or at such other mutually agreed upon point. 



        Weight Limitation—Lessee shall not exceed the weight limitations prescribed for operation of cars in unrestricted interchange
service as set forth under AAR Interchange Rule 91 without Lessor's prior written consent. 


Escalation of Monthly Rental Charge:  


	1.
	Modifications—In
accordance with Article 19 of Railroad Car Lease Agreement, any change in car design required by the AAR, DOT, FRA or other governmental authority
during the term of this lease will cause the monthly car rental to increase for each car on the month following its modification as follows:



	A.
	For
modification with a useful life equal to the car itself, car rental will increase by a monthly rate of $1.75 per car for each $100 of Lessor's cost incurred in the course of making
modification.



	B.
	For
modification with a useful life less than that of the car, monthly car rental increase will equal cost of modification, including the implicit cost of money at 10% per annum,
divided by the number of months of estimated remaining life of the modification. 









	2.
	High
Mileage—In accordance with Article 20, in the event that a car travels more than 36,000 miles (empty and loaded) in any calendar year, the Lessee shall pay the
Lessor $0.025 per mile for each mile over 36,000 traveled by such car. 



        Lessor
and Lessee agree that this Rider shall constitute a separate Lease which incorporates the terms of the above referenced Railroad Car Lease Agreement. This Rider shall be severable
from any other cars or riders relating to the above referenced Railroad Car Lease Agreement and shall become a separate lease which is separately transferable for all purposes. 



        The
minimum rental period for the cars leased hereunder shall be sixty (60) months, and the cars shall continue under lease thereafter for successive twelve (12) month
terms, at the same rate and under the same conditions, unless notice, in writing, requesting cancellation shall be given by either party to the other at least sixty (60) days prior to
expiration of the initial term or any successive term 


13





 




for cars covered by this Rider. Thereafter, this Rider shall terminate automatically upon the date of release of the last car covered by this Rider. 


        Cancels
Rider Number    N/A 



	

TRINITY INDUSTRIES LEASING COMPANY	
 	

 
	

By:	
 	

/s/  THOMAS C. JARDINE      
 Vice President	
 	

 
	

DAKOTA ETHANOL LLC	
 	

 
	

By:	
 	

/s/  DEAN FREDRICKSON      
 General Manager	
 	

 




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QuickLinks


TRINITY INDUSTRIES LEASING COMPANY RAILROAD CAR LEASE AGREEMENT


EXHIBIT A CERTIFICATE OF ACCEPTANCE OF RAILROAD CAR