Exhibit
10.2


 


FIRST AMENDMENT TO REVOLVING CREDIT AND SECURITY AGREEMENT


 


This First Amendment to Revolving Credit and
Security Agreement (the “First Amendment”),  is
made this 6th day of August, 2010 among AVENTINE
RENEWABLE ENERGY HOLDINGS, INC., a Delaware corporation (“Holdings”),
AVENTINE RENEWABLE ENERGY — AURORA WEST, LLC,
a Delaware limited liability company (“Aventine Renewable Aurora”), AVENTINE RENEWABLE ENERGY, INC., a Delaware corporation
(“Aventine Renewable Inc.”), AVENTINE RENEWABLE ENERGY —
MT VERNON, LLC, a Delaware limited liability company (“Aventine
Renewable Mt. Vernon”), AVENTINE POWER, LLC,
a Delaware limited liability company (“Aventine Power”), NEBRASKA
ENERGY, L.L.C., a Kansas limited liability company (“Nebraska Energy”
and together Holdings, Aventine Renewable Aurora, Aventine Renewable Inc.,
Aventine Renewable Mt. Vernon and Aventine Power, each a “Borrower” and jointly
and severally, the “Borrowers”), the financial institutions which are now or
which hereafter become a party hereto as “Lenders” (collectively, the “Lenders”),
and PNC BANK, NATIONAL ASSOCIATION,
as administrative agent and collateral agent for the Lenders (in each such
capacity, “Agent”).


 


BACKGROUND


 


A.            On March 15, 2010,
Borrowers, Lenders and Agent entered into, inter  alia, that
certain Revolving Credit and Security Agreement (as same has been or may
hereafter be amended, modified, renewed, extended, restated or supplemented
from time to time, the “Loan Agreement”) to reflect certain financing
arrangements among the parties thereto. 
The Loan Agreement and all other documents executed in connection
therewith to the date hereof are collectively referred to as the “Existing
Financing Agreements.”  All capitalized
terms used not otherwise defined herein shall have the meaning ascribed thereto
in the Loan Agreement, as amended hereby.


 


B.            Holdings
intends to enter into an Asset Purchase Agreement (the “Canton
Purchase Agreement”) with New CIE Energy Opco, LLC, a Delaware limited
liability company (the “Seller”), pursuant to which Seller shall sell, and
Holdings shall purchase, substantially all of the assets of Seller (the “Acquired
Assets”), on the terms and conditions set forth therein (such sale and
purchase, the “Acquisition”); and


 


C.            Borrowers have requested and
Agent and Lenders have agreed to: (i) consent to the Acquisition and (ii) modify
certain terms and provisions of the Loan Agreement, in each case on the terms
and subject to the conditions contained in this First Amendment.


 


NOW, THEREFORE, in
consideration of the mutual promises contained herein, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:


 


Section 1.              Consent.


 


(a)           In reliance upon the documentation and information
provided to Agent in connection with the Acquisition, including without
limitation, the Canton Purchase Agreement, and notwithstanding anything to the
contrary contained in the Loan Agreement, upon satisfaction of the conditions
set forth in Section 4 below, Agent and Lenders hereby consent to the
Acquisition.


 

















 


(b)           This consent shall be effective only as to the
Acquisition.  This consent shall not be
deemed a consent to the breach by Borrowers of other covenants or agreements
contained in any Existing Financing Agreement with respect to any other
transaction or matter. Borrowers agree that the consent set forth in the
preceding paragraph (a) shall be limited to the precise meaning of the
words as written therein and shall not be deemed (i) to be a consent to,
or any waiver or modification of, any other term or condition of any Existing
Financing Agreement, or (ii) to prejudice any right or remedy that Agent
or Lenders may now have or may in the future have under or in connection with
any Existing Financing Agreement other than with respect to the matters for
which the consent in the preceding paragraph (a) has been provided.  Other than as described in this Amendment,
the consent described in the preceding paragraph (a) shall not alter,
affect, release or prejudice in any way any of the Borrowers’ Obligations under
the Existing Financing Agreements.  This
consent shall not be construed as establishing a course of conduct on the part
of Agent or Lenders upon which the Borrowers may rely at any time in the
future. Borrowers expressly waive any right to assert any claim to such effect
at any time.


 


Section 2.              Amendments to Loan Agreement.


 


(a)           Amended Definitions.   Upon the Effective Date (as defined below), Section 1.2
of the Loan Agreement shall be amended by deleting the definition of “Letter
of Credit Sublimit” and restating such definition in its entirety as
follows:


 


“Letter
of Credit Sublimit” shall mean Seventeen Million Dollars ($17,000,000).


 


(b)           New Definitions. Upon the Effective Date, Section 1.2
of the Loan Agreement shall be amended by adding the following definitions:


 


“Canton Purchase Agreement” shall mean the
Asset Purchase Agreement, including all exhibits and schedules thereto, dated
as of August 6, 2010, by and between New CIE Energy Opco, LLC, a Delaware
limited liability company, as seller, and Holdings, as buyer.


 


“First
Amendment” shall mean that certain First Amendment to Revolving Credit and
Security Agreement dated the First Amendment Date.


 


“First
Amendment Date” shall mean August 6, 2010.


 


(c)           Covenant to Exercise Rights.  Upon the Effective Date, the following “Section 6.11”
shall hereby be added to Article VI of the Loan Agreement:


 


6.11         Exercise of Rights.  In its commercially reasonable judgment,
enforce all of its rights under the Canton Purchase Agreement and any documents
or agreements executed in connection therewith, including, but not limited to,
all indemnification rights and pursue all remedies available to such Borrower
with diligence and in good faith in connection with the enforcement of any such
rights.


 


(d)           Capital Expenditures.  Upon the Effective Date, Section 7.6 of
the Loan Agreement shall be deleted in its entirety and replaced as follows:


 


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Capital Expenditures.  Contract for, purchase or make any
expenditure or commitments for Capital Expenditures in an aggregate amount for
all Borrowers in excess of: (a) $115,000,000 for the fiscal year ending December 31,
2010; (b) $10,000,000 for fiscal year ending December 31, 2011; (c) $20,000,000
for fiscal year ending December 31, 2012; and (d) $7,000,000 for
fiscal year ending December 31, 2013 and each fiscal year thereafter.


 


(e)           Inventory Reporting.  Upon the Effective Date, Section 9.16 of
the Loan Agreement shall be deleted in its entirety and replaced as follows:


 


Daily Inventory Reporting. Unless
otherwise agreed to by Agent, in the event that Borrowers’ available
unrestricted cash falls below $20,000,000 at any time, Borrowers shall deliver
to Agent on a daily basis a report setting forth Borrowers’ in-transit
Inventory in form and substance reasonably acceptable to Agent.


 


(f)            Amendment to Schedules. Upon the
Effective Date, the Schedules to the Loan Agreement are hereby amended by
deleting such Schedules in their entirety and substituting the respective
Schedules attached hereto as Annex I in lieu therefor.


 


Section 3.              Security
Interest.  As security
for the payment of the Obligations, and satisfaction by Borrowers of all
covenants and undertakings contained in the Loan Agreement, the Other Documents
and the Existing Financing Agreements, each Borrower reconfirms the prior grant
of the security interest in and first priority, perfected lien in favor of
Agent for its benefit and the ratable benefit of each Lender, upon and to, all
of its right, title and interest in and to the Collateral, whether now owned or
hereafter acquired, created or arising and wherever located.


 


Section 4.              Conditions Precedent.  This First Amendment shall
be effective on the date (such date, the “Effective Date”) when each of the
following conditions precedent shall have occurred:


 


(a)           Agent shall have received this First Amendment, duly
executed and delivered by an authorized officer of each of the Borrowers and
the Lenders.


 


(b)           Agent shall have received, for the ratable benefit
of Lenders, a non-refundable amendment fee in the amount of $35,000.00.


 


(c)           Agent shall have received and reviewed to its
satisfaction full, complete, final and signed copies of the Canton Purchase
Agreement (together with all exhibits and schedules thereto) and all other
documents executed by any party to the Canton Purchase Agreement and delivered
to the other party to the Canton Purchase Agreement in connection therewith,
all in form and substance satisfactory to Agent in its reasonable
discretion.  In addition, the Acquisition
shall have been consummated in accordance with the terms of the Canton Purchase
Agreement, as in effect on the Effective Date.


 


(d)           Since the Closing Date, there shall not have occurred
any event, condition or state of facts which could reasonably be expected to
have a Material Adverse Effect.


 


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(e)           Each of the representations and warranties made by
each Borrower in or pursuant to the Loan Agreement, as amended hereby, and any
Other Document, and each of the representations and warranties contained in any
certificate, document or financial or other statement furnished at any time
under or in connection with the Loan Agreement, as amended hereby, and any
Other Document, shall be true and correct in all material respects on and as of
such date.


 


(f)            No Event of Default or Default shall have occurred
and be continuing on the Effective Date, or would exist on the Effective Date
after giving effect to the transactions contemplated by this First Amendment
(including, without limitation, the Acquisition).


 


(g)           No litigation, investigation or proceeding before or
by any arbitrator or Governmental Body shall be continuing or, to the knowledge
of any Borrower, threatened against any Borrower or against the officers or
directors of any Borrower (A) in connection with this First Amendment, the
Loan Agreement, the Other Documents, the Canton Purchase Agreement or any of
the transactions contemplated hereby or thereby and which, in the reasonable
opinion of Agent, is deemed material or (B) which could, in the reasonable
opinion of Agent, have a Material Adverse Effect; and (ii) no injunction,
writ, restraining order or other order of any nature materially adverse to any
Borrower or the conduct of such Borrower’s business or inconsistent with the
due consummation of the transactions contemplated by this First Amendment
(including, without limitation, the Acquisition) shall have been issued by any
Governmental Body.


 


Section 5.              Post Closing Conditions.


 


(a)           Within thirty (30) days after the First Amendment
Date, Borrowers shall deliver to Agent a fully executed Access and Waiver
Agreement, in form and substance satisfactory to Agent, relating to the premises
leased under that certain Lease Agreement by and between Amerenenergy Resources
Generating Company and Central Illinois Energy, L.L.C. (as predecessor to the
Seller), dated as of August 11, 2005; provided however that failure to
deliver any such Access and Waiver Agreement shall not be deemed to be an Event
of Default hereunder; provided further that Borrowers acknowledge and agree
that any Inventory located at any location for which an Access and Waiver
Agreement has not been delivered to Agent shall not be included in the Formula
Amount, unless Agent agrees to permit the inclusion of such Inventory in the
Formula Amount subject to a rent reserve, to be determined by Agent in its
reasonable discretion.


 


(b)           Borrowers shall deliver to Agent, no later than the
close of business on August 10, 2010, evidence of (i) the payment in
full of all outstanding obligations under that certain Credit and Security
Agreement by and between Seller and Whitebox Hedged High Yield Partners, LP,
dated as of November 5, 2008, as amended (the “Whitebox Credit Agreement”),
(ii) the termination of the Whitebox Credit Agreement and (iii) the
release of all related security interests and liens, if any, in the assets and
properties of the Seller.


 


Section 6.              Confirmation
of Indebtedness.  Borrowers
confirm and acknowledge that as of the close of business on August 6,
2010, Borrowers were indebted to Agent and Lenders: (i) on account of
Revolving Advances under the Loan Agreement in the aggregate principal amount
of $0.00; and (ii) on account of undrawn Letters of Credit under the Loan 


 


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Agreement
in the aggregate principal amount of $3,428,000.00, plus all fees, expenses and
accrued but unpaid interest and in each case without any deduction, defense,
setoff, claim or counterclaim, of any nature.


 


Section 7.              General
Provisions.


 


(a)           Except as herein expressly amended, the Loan
Agreement, the Other Documents and any other agreements, documents, instruments
and certificates executed in connection therewith, are ratified and confirmed
in all respects and shall remain in full force and effect in accordance with
their respective terms.


 


(b)           From and after the Effective Date, all references in
this First Amendment, the Loan Agreement and the Other Documents to “this Loan
Agreement,” “the Loan Agreement”, “hereof,” “herein,” “therein” or similar
terms, shall mean and refer to the Loan Agreement as has been amended and as
further amended by this First Amendment.


 


(c)           This First Amendment shall be governed by and
construed in accordance with the laws of the State of Illinois applied to
contracts to be performed wholly within the State of Illinois.  Any judicial proceeding brought by or against
any Borrower with respect to this First Amendment may be brought in any court
of competent jurisdiction in the State of Illinois, United States of America,
and, by execution and delivery of this First Amendment, each Borrower accepts
for itself and in connection with its properties, generally and unconditionally,
the non-exclusive jurisdiction of the aforesaid courts, and irrevocably agrees
to be bound by any judgment rendered thereby in connection with this First
Amendment.  Each Borrower hereby waives
personal service of any and all process upon it and consents that all such
service of process may be made by registered mail (return receipt requested)
directed to Borrowing Agent at its address set forth in Section 16.6 of
the Loan Agreement and service so made shall be deemed completed after the same
shall have been received by the Borrowing Agent, or at the Agent’s option, by
service upon Borrowing Agent which each Borrower irrevocably appoints as such
Borrower’s agent for the purpose of accepting service within the State of
Illinois.  Nothing herein shall affect
the right to serve process in any manner permitted by law or shall limit the
right of Agent or any Lender to bring proceedings against any Borrower in the
courts of any other jurisdiction.  Each
Borrower waives any objection to jurisdiction and venue of any action
instituted hereunder in any court of competent jurisdiction in the State of
Illinois and shall not assert any defense based on lack of jurisdiction or
venue or based upon forum non conveniens. 
Each Borrower waives the right to remove any judicial proceeding brought
against such Borrower in any state court to any federal court.  Any judicial proceeding by any Borrower
against Agent or any Lender involving, directly or indirectly, any matter or
claim in any way arising out of, related to or connected with this First
Amendment or any related agreement, shall be brought only in a federal or state
court located in the County of Cook, State of Illinois.


 


(d)           The Loan Agreement as amended hereby contains the
entire understanding between each Borrower, Agent and each Lender and
supersedes all prior agreements and understandings, if any, relating to the
subject matter hereof.  Any promises,
representations, warranties or guarantees not herein or therein contained and
hereinafter made shall have no force and effect unless in writing, signed by
each Borrower’s, Agent’s and each Lender’s respective officers.  Neither this First Amendment nor any portion
or provisions hereof may be changed, modified, amended, waived, supplemented,
discharged, cancelled or terminated orally or by any 


 


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course
of dealing, or in any manner other than by an agreement in writing, signed by
the party to be charged.  Each Borrower
acknowledges that it has been advised by counsel in connection with the
execution of this First Amendment and is not relying upon oral representations
or statements inconsistent with the terms and provisions of this First
Amendment.


 


(e)           If any part of this First Amendment is contrary to,
prohibited by, or deemed invalid under Applicable Laws or regulations, such
provision shall be inapplicable and deemed omitted to the extent so contrary,
prohibited or invalid, but the remainder hereof shall not be invalidated
thereby and shall be given effect so far as possible.


 


(f)            All costs and expenses, including reasonable
attorneys’ fees and disbursements incurred by Agent on its behalf or on behalf
of any Lender or by any Lender on its behalf or on behalf of Agent or any other
Lender in connection with the negotiation, preparation and entering into of the
this First Amendment may be charged to the Borrowers’ Account and shall be part
of the Obligations.


 


(g)           The captions at various places in this First
Amendment are intended for convenience only and do not constitute and shall not
be interpreted as part of this First Amendment.


 


(h)           This First Amendment may be executed in any number
of and by different parties hereto on separate counterparts, all of which, when
so executed, shall be deemed an original, but all such counterparts shall
constitute one and the same agreement. 
Any signature delivered by a party by facsimile transmission shall be
deemed to be an original signature hereto.


 


(i)            The parties acknowledge that each party and its
counsel have reviewed this First Amendment and that the normal rule of
construction to the effect that any ambiguities are to be resolved against the
drafting party shall not be employed in the interpretation of this First
Amendment or any amendments, schedules or exhibits thereto.


 


(j)            Nothing contained in this First Amendment shall be
deemed to constitute a waiver of any Default or Event of Default, whether or
not Agent or any Lender has knowledge thereof.


 


(Signature Page Follows)


 


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IN WITNESS WHEREOF, the parties hereto have
caused this First Amendment to be duly executed by their respective officers
thereunto duly authorized as of the day and year first above written.


 


	
   

  	
  PNC BANK, NATIONAL ASSOCIATION,

  
	
   

  	
  as Agent and a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Sherry Winick

  
	
   

  	
  Name:

  	
  Sherry
  Winick

  
	
   

  	
  Title:

  	
  Vice
  President

  
	
   

  	
   

  	
   

  
	
   

  	
  AVENTINE
  RENEWABLE ENERGY HOLDINGS, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Thomas Manuel

  
	
   

  	
  Name:

  	
  Thomas
  Manuel

  
	
   

  	
  Title:

  	
  CEO

  
	
   

  	
   

  	
   

  
	
   

  	
  AVENTINE
  RENEWABLE ENERGY — AURORA WEST, LLC

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Thomas Manuel

  
	
   

  	
  Name:

  	
  Thomas
  Manuel

  
	
   

  	
  Title:

  	
  CEO

  
	
   

  	
   

  	
   

  
	
   

  	
  AVENTINE
  RENEWABLE ENERGY, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Thomas Manuel

  
	
   

  	
  Name:

  	
  Thomas
  Manuel

  
	
   

  	
  Title:

  	
  CEO

  
	
   

  	
   

  	
   

  
	
   

  	
  AVENTINE
  RENEWABLE ENERGY — MT VERNON, LLC

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Thomas Manuel

  
	
   

  	
  Name:

  	
  Thomas
  Manuel

  
	
   

  	
  Title:

  	
  CEO

  
	
   

  	
   

  	
   

  
	
   

  	
  AVENTINE
  POWER, LLC

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Thomas Manuel

  
	
   

  	
  Name:

  	
  Thomas
  Manuel

  
	
   

  	
  Title:

  	
  CEO

  
	
   

  	
   

  	
   

  
	
   

  	
  NEBRASKA ENERGY, L.L.C.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Thomas Manuel

  
	
   

  	
  Name:

  	
  Thomas
  Manuel

  
	
   

  	
  Title:

  	
  CEO

  



 

















 


ANNEX I


 


Schedules


 


(See Attached)


 


8