Exhibit
10.1


 


AMENDMENT


TO


ENGINEERING,
PROCUREMENT AND


CONSTRUCTION
SERVICES


FIXED
PRICE CONTRACT


LOCATION:
AURORA, NEBRASKA


 


THIS AMENDMENT (“Amendment”)
is made and entered into effective as of October 1, 2008 by and between
Aventine Renewable Energy - Aurora West, LLC (“Owner”) and Kiewit Energy
Company (“Kiewit”).


 


WITNESSETH


 


WHEREAS, Owner and Kiewit are parties to that
certain Engineering, Procurement and Construction Services Fixed Price Contract
dated May 31, 2007 (the “Contract”); and


 


WHEREAS, Owner and Kiewit desire to amend the
Contract as set forth below.


 


NOW, THEREFORE, in consideration of the
premises and the mutual covenants herein contained, Owner and Kiewit agree as
follows;


 


1.             Capitalized
terms not defined herein shall have the meaning set forth in the Contract.


 


2.             The
first sentence of Section 5.1 of the Contract is deleted in its entirety and
the following language is inserted in lieu thereof:


 


“Kiewit guarantees that Substantial
Completion of the Work will be  achieved
no later than June 30, 2009 (“Guaranteed Substantial Completion Date”).”


 


3.             The
third sentence of Section 5.1 of the Contract is hereby amended by inserting
the following language after the phrase “provided, however,” on the last line
of page 12 of the Contract:


 


“such Base LDs shall not commence with until
the 31st Day after the Guaranteed Substantial Completion Date (i.e.
Day 1 under item (i) above shall be such 31st Day after the
Guaranteed Substantial Completion Date) and provided further, however, . . .”


 


4.             Section
5.3 Early Completion Bonus of the Contract
is deleted in its entirety and there shall be no early completion bonus under
the Contract.


 


5.             For
all Work performed under the Contract prior to September 22, 2008 (i.e. for
Work covered by invoices through and including Monthly Progress Invoice No. 18),
Owner will  make monthly progress
payments in accordance with Section 8.3. For all Work performed under the
Contract from and after September 22, 2008, notwithstanding any language of the
second, third and fourth sentences of Section 8.3 to the contrary, Owner shall
pay for such Work in nine (9) equal monthly installments. Such nine (9) equal
monthly installments shall be determined as 


 

















 


follows: (i)
first, an amount equal to the initial Contract Sum of Two Hundred Thirty
Million Seventeen Thousand Four Hundred Sixteen and no/100 Dollars
($230,017,416) shall be adjusted (up or down) for any agreed upon changes to
the Contract Sum as a result of any agreed upon Change Orders, and for any
adjustments to the Contract Sum under the fourth sentence of Section 8.1 for
Work performed prior to September 22, 2008, (ii) second, all progress payments
paid by Owner for Work performed under the Contract prior to September 22, 2008
(excluding any Excluded Taxes included in such progress payments) shall be
subtracted from the amount determined under item (i) above; for the avoidance
of doubt, all amounts paid by Owner or its affiliates under the AWA and the
Pre-EPC Agreement shall be considered as progress payments paid by Owner, (iii)
third, the amount determined under item (ii) above shall be increased by any
Excluded Taxes which Owner and Kiewit estimate, as of October 1, 2008, will be
owed by Owner under Section 8.1 for Work performed from and after September 22,
2008, (iv) fourth, the amount determined under item (iii) above shall be
adjusted up or down for any adjustments to the Contract Sum under the fourth
sentence of Section 8.1 which Kiewit and Owner estimate, as of October 1, 2008,
will occur for Work to be performed from and after September 22, 2008, and (v) fifth,
the amount determined under item (iv) shall be the amount to be paid by Owner
in nine (9) equal monthly installments (each installment being the amount
determined under item (iv) divided by nine (9)) commencing with Work performed under
the Contract from and after September 22, 2008, for which the first of such
nine (9) installments will be paid by Owner in November 2008 and the last of
such nine (9) installments will be paid by Owner in July 2009, subject to the
payment process hereafter set forth in this Section 8.3. However, the last of
these nine (9) monthly installment payments shall be subject to adjustment to
reflect any difference, up or down, between the total amount owed by Owner
under this Contract for the Work and the total amount paid by Owner under this
Contract for the Work (including payment of such ninth (9th) monthly
installment before any such adjustment and including credits for all amounts
paid by Owner or its affiliates under the AWA and the Pre-EPC Agreement) .”


 


6.             The
Applications for Payment and supporting documentation to be submitted by Kiewit
to Owner under Section 8.3 of the Contract pertaining to the nine (9)
installment payments which are described in paragraph 5. of this Amendment
shall contain the same information as Applications for Payment and supporting
documentation previously submitted by Kiewit as well as the calculation of the
installment payments with reasonable supporting documentation; provided,
however, each Monthly Progress Invoice shall also include line items
identifying the difference (both for the current period and on a cumulative
basis) between what the progress payment(s) would have been had Section 8.3 of
the Contract not been amended as set forth in paragraph 5. of this Amendment
and the installment payment(s) determined under Section 8.3 of the Contract as
amended under paragraph 5. of this Amendment.


 


7.             The
corn grind date in order, in part, for Plant Startup to occur under the
Contract is targeted to occur on May 30, 2009.


 


8.             Except
as set forth above, all terms of the Contract shall remain in full force and
effect.


 


9.             This
Amendment may be executed by Kiewit and Owner in any number of counterparts,
each of which shall be deemed an original instrument, but all of which together
shall constitute one and the same instrument. Execution may be evidenced by facsimile



 


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signatures
with original signature pages to follow in due course.


 


IN WITNESS WHEREOF, the Parties have caused
this Amendment to be executed effective as of October 1, 2008.


 


 


	
  AVENTINE RENEWABLE ENERGY -

  	
   

  	
  KIEWIT ENERGY COMPANY

  
	
  AURORA WEST, LLC

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By: 

  	
  /s/ Daniel R. Trunfio, Jr.

  	
   

  	
  By: 

  	
  /s/ Brad Kaufman

  
	
   

  	
   

  	
   

  	
   

  
	
  Name: Daniel R. Trunfio, Jr.

  	
   

  	
  Name: Brad Kaufman

  
	
   

  	
   

  	
   

  
	
  Title: Chief Operating
  Officer

  	
   

  	
  Title: President

  



 


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