Exhibit
10.6.1

     

     

    
      CHANGE
ORDER NUMBER 123108MV

      TO

      ENGINEERING, PROCUREMENT AND

      CONSTRUCTION
SERVICES

      FIXED
PRICE CONTRACT

      LOCATION:
MT. VERNON, INDIANA

      


       

      THIS CHANGE ORDER (“Change
Order”) is made and entered into effective as of December 31, 2008 (the
“Effective Date”) by and between Aventine Renewable Energy – Mt. Vernon, LLC
(“Owner”) and Kiewit Energy Company (“Kiewit”).

       

      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,
pursuant to Article 6 of the Contract, Owner provides the following as written
direction to Kiewit to make certain changes in the Work, and Kiewit by its
signature below accepts such direction.

       

      
        	
                 
      

              	
                1.

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

              


      

       

      
        	
                 
      

              	
                2.

              	
                Pursuant
      to Section 9.5 of the Contract, Owner directed Kiewit to suspend the Work
      on the Plant as of the Effective Date (the “Date of
      Suspension”).

              


      

       

      
        	
                 
      

              	
                3.

              	
                Pursuant
      to the terms of the Contract, Owner owes Kiewit $7,934,615 (subject to the
      Dispute Resolution procedures referenced below), which amount includes
      $6,685,431 not previously invoiced for the agreed progress of the Work
      completed as of November 14, 2008, $241,159 for sales and use taxes, and
      $1,008,025 for the agreed progress of the Work completed as of December
      31, 2008.  Such amount is due and owing to Kiewit as of December
      31, 2008, and may be subject to adjustment which may be mutually agreed
      upon by Kiewit and Owner or determined pursuant to the Dispute Resolution
      procedures set forth in Article 18 of the Contract.  Such amount
      shall be paid by Owner to Kiewit in accordance with the payment schedule
      set forth in Section 12 below.  Nothing contained in the Change
      Order shall be deemed to constitute the creation of indebtedness of Owner
      under any of its loan documents and the amount owing hereunder arose in
      the ordinary course of business of
Owner.

              


      

       

      
        	
                 
      

              	
                4.

              	
                In
      addition to the amounts Owner owes Kiewit in Section 3, the parties agree
      that Owner shall pay Kiewit the following:  (i) Kiewit’s costs,
      with no profit or mark-up to be paid by Owner, associated with the
      directed suspension of the work in the lump sum amount of $2,936,600, and
      (ii) $2,000,000 as an allowance for the amounts invoiced by Kiewit’s
      subcontractors and material subcontractors (collectively the
      “Subcontractors”) for such Subcontractors’ suspension costs, plus a
      mark-up of twenty percent (20%) of such invoiced costs (“Subcontractors’
      Suspension Costs”), which amounts, to the extent not disputed by Owner,
      shall be paid by Owner to Kiewit in accordance with the payment schedule
      set forth in Section 12 below.  Such amount includes payment for
      the Suspension Services defined below.  Kiewit will work with
      Owner, and shall allow Owner to work with Kiewit’s Subcontractors (to the
      extent allowed under the terms of such subcontracts), in an effort to
      reduce the Subcontractors’ Suspension Costs.  Disputes regarding
      the validity or amount of the Subcontractors’ Suspension
    Costs

              


      

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

           

          
            	
                     
      

                  	
                     

                  	
                    claims
      and Kiewit invoice(s) based thereon will be resolved pursuant to Article
      18 of the Contract.

                  


          

        

      

       

      
        	
                 
      

              	
                5.

              	
                If
      the total Subcontractors’ Suspension Costs exceed the allowance provided
      for in Section 4 above, the additional amount of Subcontractors’
      Suspension Costs in excess of the allowance shall be added to the amount
      owed by Owner to Kiewit pursuant to this Change Order and shall be paid as
      an additional payment on June 30, 2009 in accordance with the provisions
      of Section 12 below.  If the total Subcontractors’ Suspension
      Costs do not exceed the allowance provided for in Section 4 above, Kiewit
      will credit the difference between the allowance and the actual
      Subcontractors’ Suspension Costs to the last amounts payable to Kiewit in
      accordance with Section 12 of this Change
Order.

              


      

       

      
        	
                 
      

              	
                6.

              	
                Owner
      and Kiewit agree that the Work may be suspended for up to 180 days from
      the Date of Suspension (the “Suspension Period”).  If Owner is
      not in default of the payment obligations specified in this Change Order,
      Owner may terminate the Suspension Period and direct Kiewit to resume
      construction of the Work following the delivery to Kiewit of (i) 10 days
      advance written notice to resume the Work and (ii) reasonable evidence
      reasonably satisfactory to Kiewit that Owner can satisfy the remaining
      financial obligations of this Change Order and the Contract and (iii)
      payment in full of all remaining amounts payable under this Change Order
      (without consideration of the schedule in Section 12 below); provided,
      however, that nothing in this Change Order shall be construed to limit or
      restrict Kiewit’s entitlement to an equitable adjustment to the Contract
      Sum arising from the suspension (including costs associated with
      re-mobilization and rescheduling of the Work) and the Schedule in
      connection with such suspension in accordance with Article 6 of the
      Contract.

              


      

       

      
        	
                 
      

              	
                7.

              	
                If
      the Suspension Period expires without the Owner’s termination of the
      Suspension Period in accordance with the terms of the Contract and this
      Change Order, the Contract shall be deemed to have been terminated for the
      Owner’s convenience under Section 9.4 of the Contract, and Owner shall pay
      Kiewit any amounts due Kiewit under Section 9.4 of the Contract and all
      remaining payments due under this Change Order (without consideration of
      the schedule in Section 12 below);  provided there shall be no
      duplication of payments under Section 9.4 of the Contract and this Change
      Order.  Notwithstanding the provision contained in the first
      sentence of Section 9.4, Owner may enter into a contract with another
      entity to complete construction of the Plant, if Owner has made all
      payments due Kiewit under Section 9.4 of the Contract and all remaining
      payments due under this Change Order; provided there shall be no
      duplication of payments under Section 9.4 of the Contract and this Change
      Order.

              


      

       

      
        	
                 
      

              	
                8.

              	
                During
      the Suspension Period, all Contract milestone dates and Schedule deadlines
      are tolled and, in the event of re-mobilization, shall be reestablished by
      change order pursuant to Article 6 of the Contract; provided, however,
      that in the event of such remobilization, Kiewit shall be excused from the
      notice requirements contained in Sections 6.2 and 6.3 of the
      Contract.  The amounts set out in Sections 3, 4 and 5 above and
      the rental payments or demobilization costs for the Cranes as set forth in
      Section 15 below shall be the only amounts due to Kiewit for costs
      associated with the Suspension Period; provided that nothing in this
      sentence shall preclude Kiewit from entitlement to a change order as set
      forth in Section 6 above in the event the Suspension Period is
      terminated.

              


      

       

      
        	
                 
      

              	
                9.

              	
                For
      so long as Owner complies with the payment provisions of this Change
      Order, Kiewit will

              


      

       

      
        
          
          

        

        
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                    provide
      qualified personnel on the Plant Site to perform necessary maintenance of
      equipment in accordance with equipment manufacturer’s operation and
      maintenance manuals (collectively the “Suspension Services”) during the
      Suspension Period.  Other than the Suspension Services, Kiewit
      has no obligation during the Suspension Period to continue performance of
      the Work at the Plant Site.  During the Suspension Period,
      Kiewit shall have no obligation to comply with the requirements of 10.2
      (Security), 11.1 (Kiewit Representatives), 11.3 (Project Reviews and
      Approvals) and 20.11 (Time is of the Essence) and, except to the extent
      that Kiewit has previously received payment or receives funds from the
      Owner in accordance with the payment schedule set out in Section 12,
      Kiewit shall be excused from any requirement under the Contract to keep
      the project lien free with respect to those liens filed by Subcontractors
      which represent amounts unpaid under such subcontract, after the
      Suspension Date, but not yet due and owing under the terms of the
      subcontract, or to indemnify and/or reimburse the Owner with respect to
      such liens.  During the performance of the Suspension Services,
      Owner shall have access to the Plant Site, but in no event shall Owner be
      entitled to modify the Work completed to the Date of Suspension nor shall
      Owner be entitled to operate any equipment existing on the Plant Site
      without Kiewit’s prior written consent.

                  
	 	 	 
	 	
                    10.

                  	
                    Kiewit
      has provided an irrevocable letter of credit in lieu of retainage per
      Section 8.3 of the Contract.  Within three (3) business days
      after full execution of this Change Order, Owner shall return such letter
      of credit to the issuing bank, and instruct the issuing bank that Owner is
      returning the letter of credit for cancellation.

                  
	 	 	 
	 	
                    11.

                  	
                    The
      Owner hereby waives the requirements in the Contract for retainage or a
      letter of credit in lieu of retainage.  Notwithstanding any
      provision in the Contract to the contrary, retainage shall not be withheld
      from any amounts described in this Change Order or any amounts due under
      the Contract thereafter.

                  
	 	 	 
	 	
                    12.

                  	
                    In
      consideration of the agreements and forbearances contained in this Change
      Order, and for other good and valuable consideration, the receipt and
      sufficiency of which is hereby acknowledged, and notwithstanding that all
      amounts described in this Change Order in Section 3 4 and 5 above are
      presently due and owing to Kiewit (subject to dispute resolution under the
      Contract), Kiewit agrees to forebear from exercising its remedies under
      the Contract for non-payment, other than its rights to file mechanic’s and
      materialman’s liens against the Project, for so long as Owner makes the
      following payments in strict accordance with the deadlines below by wire
      transfer of immediately available funds to a bank to be selected by
      Kiewit, as follows:

                  


          

        

      

      
         

      

      
        	
                 
      

              	
                a.

              	
                Three
      Million Five Hundred Thousand Dollars ($3,500,000) on or before December
      31, 2008;

              


      

       

      
        	
                 
      

              	
                b.

              	
                One
      Million Eighty Thousand Dollars ($1,080,000) on or before January 31,
      2009;

              


      

       

      
        	
                 
      

              	
                c.

              	
                One
      Million Eight Hundred Thousand Dollars ($1,800,000) on or before February
      27, 2009;

              


      

       

      
        	
                 
      

              	
                d.

              	
                One
      Million Eight Hundred Thousand Dollars ($1,800,000) on or before March 31,
      2009;

              


      

       

      
        
          
          

        

        
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                e.

              	
                One
      Million Eight Hundred Thousand Dollars ($1,800,000) on or before April 30,
      2009;

              


      

       

      
        	
                 
      

              	
                f.

              	
                One
      Million Eight Hundred Thousand Dollars ($1,800,000) on or before May 29,
      2009; and

              


      

       

      
        	
                 
      

              	
                g.

              	
                Remaining
      balance on June 30, 2009.

              


      

       

      
        	
                 
      

              	
                 

              	
                Such
      payments shall be first credited against the amounts due and owing for
      Kiewit’s suspension costs and the Subcontractors’ Suspension Costs, and
      thereafter to amounts due to Subcontractors under the terms of such
      subcontract, and thereafter to the amounts described in Sections 3 and 5
      of this Change Order.  In addition to the provisions of Section
      9.3 of the Contract, in the event Owner fails to make a payment described
      in this Section 12 when due, Kiewit may terminate the Contract three (3)
      business days after providing written notice of such failure to Owner,
      unless cured within that period.  Such termination shall be
      considered a termination for Owner’s convenience under Section 9.4 of the
      Contract, Kiewit shall have no obligation to exercise forbearance under
      this Change Order, and all remaining amounts due under Section 9.4 of the
      Contract and under this Change Order shall be immediately due and payable
      to Kiewit (without consideration of the schedule in Section 12
      below);  provided there shall be no duplication of payments
      under Section 9.4 of the Contract and this Change
      Order.  Notwithstanding the provision contained in the first
      sentence of Section 9.4, Owner may enter into a contract with another
      entity to complete construction of the Plant, if Owner has made all
      payments due Kiewit under Section 9.4 of the Contract and all remaining
      payments due under this Change Order (without consideration of the
      schedule in Section 12 below); provided there shall be no duplication of
      payments under Section 9.4 of the Contract and this Change
      Order.  Time is of the essence of this Change
    Order.

              
	 	 	 
	 	
                13.

              	
                Nothing
      in this Change Order shall preclude Kiewit from filing a mechanic’s and
      materialman’s lien against the Plant Site for the amounts unpaid, whether
      or not due under the Contract as modified by this Change Order. In the
      event any payment under the Contract or this Change Order is determined to
      be a preferential transfer and is required to be disgorged by Kiewit, the
      parties agree that any waiver of mechanic’s lien rights provided by Kiewit
      shall be rescinded, invalid, and of no further force and
      effect.

              
	 	 	 
	 	
                14.

              	
                (a)         
       In
      the event Owner terminates the Suspension Period as provided above, Owner
      and Kiewit will negotiate a change order pursuant to Article 6 of the
      Contract; provided, however, that Kiewit shall have no obligation to so
      remobilize or recommence the Work unless and until Owner has paid in full
      all amounts due to Kiewit under this Change Order (without consideration
      of the schedule in Section 12 below).  In such event, Kiewit
      will provide to Owner both a cost plus and a fixed price option at a
      negotiated profit margin for the remaining work to be performed in
      sufficient detail to allow a meaningful analysis of the
      options.

              
	 	 	 
	 	 	(b)           Following
      any resumption of and completion of the Work, and subject to the other
      provisions of the Contract, Kiewit warrants to Owner pursuant to Section
      12.1 of the Contract that the Plant will be free from defects in design,
      material and workmanship (other than design, material and workmanship
      provided by Subcontractors) until twelve (12) months from Substantial
      Completion, as such date may be extended as the result of the suspension
      and that the Plant will be free from defects in design, material and
      workmanship provided by the 


      

       

      
        
          
          

        

        
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        	 	 	Subcontractors
      until twelve (12) months from the originally scheduled Substantial
      Completion Date of March 27, 2009.  Kiewit shall have no
      responsibility to correct or address defects in design, materials or
      workmanship provided by Subcontractors which are discovered after March
      27, 2010, unless such Subcontractor warranties already extend past such
      date or are extended at Owner’s expense as provided in 14(c)
    below.
	 	 	 
	 	 	(c)           Following
      any resumption of the Work and before March 27, 2010, Kiewit will provide
      Owner with the costs associated with extending Subcontractor warranties
      beyond March 27, 2010, to the extent such information is
      available.  If Owner elects to extend any Subcontractors’
      warranties beyond the existing warranty periods, Kiewit shall cooperate
      with Owner in obtaining any such extensions and Owner shall pay the costs
      associated with obtaining any such extension(s).
	 	 	 
	 	
                15.

              	
                Owner
      will retain the Tower Crane and Crawler Crane (the “Cranes”) on site and
      pay rental at a total amount of $260,000 for the 180 day Suspension Period
      (for both Cranes, which total amount is included in the calculation of
      Kiewit’s suspension costs in Section 4 of this Change
      Order.  After the initial 26 weeks the rental for the Cranes
      shall be as negotiated between Owner and Kiewit.  Owner will
      have the option, upon written notice to Kiewit, to pay an agreed
      demobilization fee in lieu of continuing to pay rent of $5,000 per Crane
      per week for said Cranes, in which event the amount of rent paid by Owner
      through the date of demobilization shall be credited against the
      demobilization fee.  However, in the event of demobilization of
      the Cranes, Owner will continue to pay the rental costs set out in this
      Section 15 for a period not to exceed six (6) weeks, or until Kiewit has
      otherwise rented the Cranes, if earlier.

              
	 	 	 
	 	
                16.

              	
                Notwithstanding
      its obligation to provide and maintain Builder’s Risk insurance under
      Section 14.3(c) of the Contract, in the even the Builder’s Risk insurance
      policy in effect for the Plant Site is canceled by Owner, and Owner
      includes the Plant Site and Work situated thereupon in its permanent
      property insurance program, Owner shall be deemed to be in compliance with
      its obligations under Section 14.3(c) of the Contract during the
      Suspension Period, provided that (i) Kiewit and its Subcontractors are
      named as additional insured under Owner’s permanent property insurance
      program with waiver of subrogation in their favor, and (ii) such permanent
      property insurance program is reasonably acceptable to Kiewit and (iii)
      such permanent property insurance is maintained during the Suspension
      Period.  Prior to and as an additional condition to any Kiewit
      remobilization to the Plant Site and recommencement of Work at the Plant
      Site following the Suspension Period, Owner shall provide and maintain the
      Builder’s Risk policy as required by Section 14.3(c).

              
	 	 	 
	 	
                17.

              	
                In
      the event Owner cancels the existing Builder’s Risk insurance policy in
      effect for the Plant Site and otwithstanding any contrary provision in the
      Contract, care, on the effective date of such cancelation of Builder’s
      Risk policy, the care, custody and control of, and risk of loss to the
      Work located at the Plant Site, or any part thereof, including the
      Equipment shall be with Owner as of and during the Suspension Period, and
      Owner shall be responsible for and shall pay any and all related insurance
      deductibles with respect to same.  Notwithstanding the foregoing
      sentence, Kiewit will be held responsible for any damage (i) to such Work,
      whether completed or ongoing, occurring during the provision of the
      Suspension Services or (ii) to the Owner’s existing structures, materials,
      or equipment adjacent to or on the Plant Site, in the case of (i) and (ii)
      to the extent arising from any gross negligence or willful misconduct of
      Kiewit, 

              


      

       

      
        
          
          

        

        
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        	 	 	Kiewit’s
      agents or employees, Subcontractors or Subcontractors’ agents or
      employees.  Kiewit shall perform the repair or replacement of
      any such damaged Work, structures, materials, or equipment at Owner’s
      direction, and subject to the preceding sentence, at Owner’s sole cost and
      expense and upon advance payment for Kiewit’s services.  Owner
      shall release and hold Kiewit harmless from liability to Owner for any
      loss or damage to such Work not caused by the gross negligence or willful
      misconduct of Kiewit, Kiewit’s agents or employees, Subcontractors or
      Subcontractors’ agents or employees.  Owner will cause its
      insurers to issue a waiver of subrogation in favor of Kiewit and its
      Subcontractors of any tier consistent with the rights and obligations of
      this Article.
	 	 	 
	 	
                18.

              	
                Effective
      December 31, 2008, Owner will assume all responsibility and cost
      associated with the requirements of the Mt. Vernon Stormwater Pollution
      and Prevention Plan (SWPPP).  All available inspection and
      corrective action reports developed by Kiewit dated November 2007 through
      December 2008 shall be provided to Owner per the requirements of the
      SWPPP.  Upon the effective date of the notice to proceed with
      remobilization of the Work, Kiewit will resume responsibility for the
      requirements of the SWPPP.

              
	 	 	 
	 	
                19.

              	
                Within
      ten (10) days of the Effective Date, Owner shall cause its parent
      guarantor, Aventine Renewable Energy Holdings, Inc., to provide a written
      consent to this Change Order, and Kiewit shall cause its parent guarantor,
      Kiewit Energy Group Inc. (formerly known as Kiewit Energy Ltd.) to provide
      a written consent to this Change Order.

              
	 	 	 
	 	
                20.

              	
                This
      Change Order 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 can be evidenced by fax 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 December 31, 2008.

      
        
          
            
               

              
                
                  	AVENTINE RENEWABLE ENERGY - MT
      VERNON, LLC	 	 	
                          KIEWIT
      ENERGY COMPANY

                        	 
	 	 	 	 	 
	 	 	 	 	 	 	 
	By:	/s/
      Jeffrey A. Moery	 	 	
                          By:
      

                        	/s/
      Brad Kaufman 	 
	
                          Name:   
      

                        	Jeffrey
      A. Moery	 	 	
                          Name:    

                        	Brad
      Kaufman	 
	
                          Title:
      

                        	V.P.
      Tech. Services	 	 	
                          Title:
      

                        	President	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	  	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 


                

              

            

          

        

         

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