**Exhibit10.1**

 

**AMENDMENT**

**TO**

**ENGINEERING,PROCUREMENT AND**

**CONSTRUCTIONSERVICES**

**FIXEDPRICE CONTRACT**

**LOCATION:AURORA, NEBRASKA**

 

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

 

**WITNESSETH**

 

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

 

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

 

NOW, THEREFORE, in consideration of thepremises and the mutual covenants herein contained, Owner and Kiewit agree asfollows;

 

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

 

2.             Thefirst sentence of Section 5.1 of the Contract is deleted in its entirety andthe following language is inserted in lieu thereof:

 

“Kiewit guarantees that SubstantialCompletion of the Work will be  achievedno later than June 30, 2009 (“Guaranteed Substantial Completion Date”).”

 

3.             Thethird sentence of Section 5.1 of the Contract is hereby amended by insertingthe following language after the phrase “provided, however,” on the last lineof page 12 of the Contract:

 

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

 

4.             Section5.3 **Early Completion Bonus**of the Contractis deleted in its entirety and there shall be no early completion bonus underthe Contract.

 

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

 

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

 

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

 

7.             Thecorn grind date in order, in part, for Plant Startup to occur under theContract is targeted to occur on May 30, 2009.

 

8.             Exceptas set forth above, all terms of the Contract shall remain in full force andeffect.

 

9.             ThisAmendment 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 togethershall constitute one and the same instrument. Execution may be evidenced by facsimile

 

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signatureswith original signature pages to follow in due course.

 

IN WITNESS WHEREOF, the Parties have causedthis 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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