Exhibit
10.1.2


 


 


SECOND
AMENDMENT


 


TO


 


LEASE
AGREEMENT


 


AND


 


REAFFIRMATION OF GUARANTY


 


 


By and
Among


 


 


The Indiana
Port Commission,


 


 


Aventine
Renewable Energy-Mt Vernon, LLC


 


 


And


 


 


Aventine
Renewable Energy Holdings, Inc.


 


 


 

















 


SECOND
AMENDMENT TO LEASE AGREEMENT

AND REAFFIRMATION OF GUARANTY


 


THIS SECOND AMENDMENT TO LEASE AGREEMENT AND
REAFFIRMATION OF GUARANTY (“Amendment”)
is made and entered into this 18th day of October, 2007 among the INDIANA PORT COMMISSION, a body corporate and
politic existing under the laws of the State
of Indiana (the “Commission”), AVENTINE
RENEWABLE ENERGY-MT VERNON, LLC a Delaware Limited Liability Company (“Lessee”,
and together the “Parties”) and
AVENTINE RENEWABLE ENERGY HOLDINGS, INC. (“Guarantor”).


 


RECITALS:


 


                                                A.                                   The Commission is charged with the management and operation of the Ports
of Indiana, including the Port of Indiana-Mount Vernon, in Posey County,
Indiana (the “Port”).


 


                                                B.                                     The Parties
entered into a certain Lease Agreement dated October 31st, 2006
wherein the Commission did lease to Lessee a
tract of real estate consisting of approximately 116 acres, more or less, located at the Port to be used and occupied by
Lessee only for the operation of an ethanol production facility,
including the production, storage and shipment (by truck, railroad, barge,
pipeline and other means of transportation) of ethanol and ethanol related product and by products, and for related offices,
storage tanks, storage facilities and other facilities incidental to
such activity (the “Lease”).


 


                                                C.                                     Lessee and the staff of the Commission each had substantial
participation in the preparation of the Lease, which
was executed by the Office of the Attorney General and the Office of the
Governor on January 19, 2007 and January 24, 2007 respectively.


 


                                                D.                                    The Parties
entered into a certain First Amendment to Lease Agreement and Reaffirmation of
Guaranty dated June 14th, 2007 wherein Section 3.04(b),
4.01(b), and 4.01(c) were deleted in their entirety and new Sections
3.04(b), 4.01(b) and 4.01(c) were replaced as stated in said First
Amendment to Lease Agreement.


 


                                                E.                                      Section 4.01(b) of
the First Amendment of Lease Agreement reads:


 


(b)                                 Lessee shall
commence construction of Phase I of the Project on or before September 1,
2007 (the “Construction Date”).  For purposes hereof, “Commence
Construction” means the presence of contractors on the Leased
Premises performing excavation work beyond clearing of the site after Lessee
has obtained all required building permits. 
Lessee shall: (i) cause substantial completion of Phase One of the
Project with a capacity of 110 million gallons of ethanol and the commencement
of production of ethanol from Phase One (other than for the purposes of testing
operations) to occur on or before March 1, 2009, and (ii) to cause
substantial completion of Phase Two of the Project with a capacity of an
additional 110 million gallons of ethanol and the commencement of production of
ethanol from Phase Two (other than for purposes of testing operations) to occur
on or before January 1, 2010.


 


 


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F.                                      Section 4.01(c),
in part, acknowledged the existence of external circumstances and conditions,
which could arise, through no fault of Lessee, which would make it impossible
for Lessee to comply with the defined Construction Date.  Section 4.01(c) further provides
for a procedure wherein Lessee would notify the Commission of its anticipated
failure to comply with the Construction Date, the extension of the Construction
Date, and the Parties obligations should Lessee thereafter provide written
notice to the Commission of its anticipated failure to comply with the extended
Construction Date.  Further, Section 4.01(c) provides:  In the event Lessee believes it will be
unable to obtain permits by July 1, 2007, but in good faith believes that
such permits may be issued by September 1, 2007, Lessee may postpone until
September 1, 2007 such July 1, 2007 date by written notice of such
postponement provided to the Commission on or before July 1, 2007.


 


Lessee may thereafter, but prior to September 1,
2007, give the Commission written notice of an anticipated failure to comply
with the September 1, 2007 date. 
Immediately following the written notice, Lessee and the Commission
agree to negotiate in good faith a waiver of the September 1, 2007 date
and the establishment of a new date, which shall be for the shortest reasonable
time period required.  Failing agreement,
either Lessee or the Commission may terminate this Lease.


 


G.                                          Pursuant to Section 4.01 (c) Lessee provided written notice to
the Commission by letter dated August 30, 2007 of its belifef it would be
unable to obtain permits by September 1, 2007, thereby stating its belief
it would be unable to commence construction by September 1, 2007.


 


H.                                         Section 4.01 (c) states: “Immediately following the written
notice, Lessee and the Commission agree to negotiate in
good faith a waiver of the September 1, 2007 date and the establishment of a new date, which shall be for the shortest reasonable
time period required. Failing agreement, either Lessee or the Commission
may terminate this Lease”.


 


I.                                              The Parties have negotiated in good faith a waiver of the September 1,
2007 date and the amendment of certain terms of the Lease and wish to
herein memorialize their agreement.


 


J.                                             Guarantor is joining in the execution of this Second Amendment solely for
purposes of consenting to all provisions of this Amendment and
ratifying, confirming and reaffirming its obligations under that certain Lease
Guaranty dated as of October 31, 2006 (the “Lease Guaranty”).


 


K.                    The Lessee, the Commission and Guarantor have each had substantial participation in the preparation of this Amendment which shall, upon
approval by the Governor of Indiana, become effective.


 


L.                                      At a properly convened public meeting, the Commission has duly approved
the execution and delivery of this Amendment by its duly authorized
officers.


 


NOW, THEREFORE, in consideration
of the foregoing premises, the mutual undertakings hereinafter set
forth, and other good and valuable consideration, the receipt and 


 


 


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sufficiency of which are hereby acknowledged, the Commission, Lessee
and Guarantor (solely for purposes of its agreement to the provisions of
Paragraph 6 below) hereby agree as follows:


 


1.                                       Immediately following the signature page of this Amendment is the
Addendum of State required contract provisions previously executed by the
Parties.  The Parties reaffirm the
covenants and affirmations contained in said Addendum and incorporated the same
into this Second Amendment.


 


2.                                       This Second Amendment is subject to and conditioned upon the approval
of the Governor of the State of Indiana (the “Governor”). Lessee agrees that any of Lessee’s Work
performed by Lessee prior to the approval of this
Second Amendment by the Governor of the State of Indiana, or any other action taken or
expense incurred by Lessee, in contemplation of the Governor approving this
Second Amendment shall be at the sole risk of Lessee.  Lessee shall be without recourse against the
Commission or the State of Indiana for the Governor’s failure to approve this
Second Amendment in the event this Second Amendment is not approved by the
Governor of the State of Indiana, and agrees to, and hereby does, hold the
Commission harmless for any loss asserted or claimed for the Governor’s failure
to approve this Second Amendment, and to indemnify and defend the Commission
against any such loss arising, as a result of Lessee’s Work or occupancy of the
Real Estate prior to the approval of this
Second Amendment by the Governor.  If the
Governor fails to approve this Second Amendment, the Parties agree to
work together in good faith to negotiate revisions to this Second Amendment
which are mutually agreeable to the Parties and the Governor.


 


3.                                       Section 4.01(b) of the First Amendment to Lease Agreement shall
be deleted in its entirety and replaced by the following:


 


(b)                                 Lessee commenced construction of Phase I of the Project on or before September 24,
2007 (the “Construction Date”).  For purposes hereof, “Commence
Construction” means the presence of contractors on the Leased
Premises performing excavation work beyond clearing of the site after Lessee
has obtained all required building permits. 
Lessee shall:  (i) cause substantial
completion of Phase One of the Project with a capacity of 110 million gallons
of ethanol and the commencement of production of ethanol from Phase One (other
than for the purposes of testing operations) to occur on or before March 1,
2009, and (ii) to cause substantial completion of Phase Two of the Project
with a capacity of an additional 110 million gallons of ethanol and the
commencement of production of ethanol from Phase Two (other than for purposes
of testing operations) to occur on or before January 1, 2010.


 


4.                                            Section 4.01(c)of
the Lease shall be deleted in its entirety and replaced by the following:


 


(c)                                  Lessee agrees
to prosecute with due diligence all Lessee’s Work.  The parties acknowledge the Construction Date
of September 24th, 2007 as stated in Section 


 


 


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4.01(b) above
is established following consultation by Lessee with its construction managers
and suppliers.


 


5.                                       In
consideration of the Commission’s agreements set forth herein to extend the
Construction Date to September 24th, 2007, Lessee hereby
waives, to the extent applicable, all rights to claim a force majeure delay for
any matter relating to Construction Date occurring prior to the date hereof.


 


6.                                       Guarantor
hereby consents to the amendments to the Lease made by this Second Amendment and agrees that such amendments shall
not affect, impair, discharge, relieve or release Guarantor of its obligations
under the terms of the Lease Guaranty, and that such Lease shall be
deemed to reference the Lease as amended hereby. Guarantor hereby ratifies,
confirms and reaffirms in all respects, the Lease Guaranty, and agrees that
said Lease Guaranty shall continue in full force and effect.


 


7.                                       Commission and Lessee agree that the above and foregoing Recitals are true, correct and complete and are hereby incorporated and made a
part of this Amendment as if completely and fully set forth herein. The
terms used in this Second Amendment shall have the definitions set forth in the Lease as previously amended, except that
any internal references in the Lease
to the word “Lease” shall mean the Lease, as
hereby amended, wherever therein the context so requires in order to
give meaning to this Amendment.


 


8.                                       Lessee and the
Commission hereby affirm, reaffirm and confirm that as of the date hereof the
Lease is in full force and effect, that the
Lease has not been modified or amended (except as provided in this
Amendment) and that all of the Commission’s and Lessee’s obligations accrued to
date have been performed. Lessee and Commission hereby agree that there are, as
of the date hereof, regardless of the giving of notice or the passage of time,
or both, no defaults or breaches on the part of the Commission or Lessee under the Lease, as amended by this
Amendment. Each of Lessee and the Commission hereby ratify the provisions of the Lease on behalf of themselves and their
respective successors and assigns and agree to attorn and be bound to each other and their respective successors and
assigns as to all of the terms, covenants and conditions of the Lease, as
amended hereby. This Amendment shall be incorporated into and made a part of the Lease and all provisions thereof not expressly
modified or amended hereby shall remain in full force and effect. Nothing contained in this Amendment (except, as
applicable, for the specific amendments to the Lease set forth in this
Amendment) shall release or relieve Lessee or Commission from their
respective obligations or liabilities under the Lease accruing prior to the
date hereof.


 


9.                                       Except as expressly amended and modified by this Amendment, the Lease
shall otherwise remain in full force and effect, the parties hereto hereby
ratifying and confirming the same. This Amendment, together with the Lease, is
the complete understanding between the parties
and supersedes all other prior agreements and representations concerning its
subject matter. To the extent of any inconsistency between the Lease and this
Amendment, the terms of this Amendment shall control.


 


[REMAINDER
OF PAGE INTENTIONALLY BLANK — SIGNATURE PAGE FOLLOWS]


 


 


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IN WITNESS WHEREOF, the parties
hereto have executed this Lease as of the day, and month and year first
above-written.


 


	
  ATTEST:

  	
   

  	
  INDIANA PORT COMMISSION

  
	
   

  	
   

  	
  (“Commission”

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By: /s/ Tony Walker

  	
   

  	
  By: 

  	
  /s/ Ken Kaczmarek,

  
	
  Asst. Secretary

  	
   

  	
  Chairman

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  AVENTINE RENEWABLE ENERGY — MT
  VERNON, LLC

  
	
   

  	
   

  	
  (“Lessee”)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/ John R. Gray

  
	
   

  	
   

  	
  (Signature)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  John R. Gray Vice
  President — Global Supply 

  
	
  (Printed name and
  title)

  	
   

  	
  & Distribution

  
	
   

  	
   

  	
  (Printed name and
  title)

  
	
   

  	
   

  	
   

  
	
  Approved as to form
  and legality 

  	
   

  	
  APPROVED

  
	
  This 29th day of
  October, 2007

  	
   

  	
  DATE:  11/5/07

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ Elizabeth A. Brown

  	
   

  	
  /s/ Mark Massa

  
	
  For Steve Carter

  	
   

  	
  For The Honorable
  Mitchell Daniels

  
	
  Attorney General of
  Indiana

  	
   

  	
  Governor of Indiana

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  AVENTINE RENEWABLE ENERGY
  HOLDINGS, INC.

  
	
   

  	
   

  	
  “Guarantor”

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/ John R. Gray

  
	
   

  	
   

  	
  (Signature)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  John R. Gray Vice
  President — Global Supply

  
	
  (Printed name and
  title)

  	
   

  	
  & Distribution

  
	
   

  	
   

  	
  (Printed name and
  title)

  



 


This instrument was prepared jointly by David W.
Haniford, General Counsel Indiana Port Commission (Atty#7438-79) 150 W. Market
St., Ste, 100, Indianapolis, IN 46204 (317) 232- 9204; Mark D. Grant, Esq., ICE MILLER LLP, One American Square, Suite 3100,
Indianapolis, IN 46282-0200 (317) 236-2100; and James D. Satrom, Esq.,
Hall, Estill, Hardwick, Gable, 


 


Golden & Nelson, P.C., 320 S. Boston
Avenue, Suite 400, Tulsa, OK 74103-3708.


 


 


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