March 12, 2009
Exhibit
10.15.2
March 12,
2009
Aventine
Renewable Energy, Inc.
Aventine
Renewable Energy – Mt Xxxxxx, LLC
Aventine
Renewable Energy – Xxxxxx Xxxx, LLC
0000
Xxxxx Xxxxxx Xxxxxx
Xxxxx,
Xxxxxxxx 00000
Attention: Mr. Xxx Xxxxxx, Chief Executive
Officer
Re:
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Credit
Agreement dated as of March 23, 2007 (as amended, the “Credit
Agreement”), among Aventine Renewable Energy, Inc., a Delaware
corporation, Aventine Renewable Energy, Mt. Xxxxxx, LLC, a Delaware
limited liability company, Aventine Renewable Energy - Xxxxxx Xxxx, LLC, a
Delaware limited liability company, JPMorgan Chase Bank, N.A., as
Administrative Agent, and the financial institutions now or hereafter
party thereto as lenders (the “Lenders”). Unless
otherwise indicated, all capitalized terms used herein, but not otherwise
defined, shall have the same meanings herein as in the Credit
Agreement.
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Gentlemen:
Borrowers
have advised Administrative Agent and Lenders that as a result of the existence
of certain mechanic’s and other like Liens imposed by law and Borrowers’
delinquency in making payments to Kiewit Energy Company and other contractors,
in each case solely with respect to the construction projects located at 0000
Xxxxx Xxxx, Xxxxx Xxxxxx, Xxxxxxx 00000 and 0000 Xxxxxxx Xxxxx, Xxxxxx, Xxxxxxxx
00000, Borrowers are in breach of Section 4.16 of the Senior Indenture, which
breach shall become an “event of default” under and as defined in the Senior
Indenture upon such breach continuing for a period of 60 consecutive days after
written notice thereof is received by Borrowers from the trustee or the holders
of 25% or more in aggregate principal amount of the Senior Notes (the “Indenture
Violation”). The Indenture Violation is an immediate Event of
Default under Article VII(g) of the Credit Agreement (the “Specified Default”)
and Borrowers hereby request that the Required Lenders execute this letter
agreement (this “Letter Agreement”)
to, inter alia, evidence Lenders’ limited waiver of the Specified Default from
the date hereof through the earlier of (i) April 15, 2009 or (ii) the occurrence
of any Default or Event of Default (other than the Specified Default) under the
Credit Agreement (the “Specified Period”).
In reliance on the representations and warranties of Borrowers contained herein,
and subject to the limitations set forth herein, Lenders hereby waive the
Specified Default solely for the Specified Period.
The
limited waiver granted pursuant to this Letter Agreement is limited solely to
the Specified Default and solely for the Specified Period, as applicable, and
nothing contained herein shall be deemed a consent to, or waiver of, any other
action or inaction of Borrowers which constitutes (or would constitute) a
violation of any provision of the Credit Agreement or any other Loan Document,
or which results (or would result) in a Default or Event of Default under the
Credit Agreement or any other Loan Document. Neither Lenders nor
Administrative Agent shall be obligated to grant any future waivers, consents or
amendments with respect to the Credit Agreement or any other Loan
Document.
By
executing this letter in the space indicated below, Borrowers and the other Loan
Parties acknowledge and agree to the terms and provisions set forth in this
letter, and further acknowledge, represent, warrant, covenant and agree with the
Administrative Agent and the Lenders as follows:
(a)
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As
of the date of this Letter Agreement, (1) no Default or Event of
Default has occurred which is continuing after giving effect to the
limited waiver contained herein, and (2) neither Borrowers nor any
other Loan Party has any defense to (A) the obligation to pay the
Obligations when due, or (B) the validity, enforceability or binding
effect against Borrowers or any other Loan Party of the Credit Agreement
or any of the other Loan Documents (to the extent a party thereto) or any
Liens intended to be created
thereby.
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(b)
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Each
representation and warranty of Borrowers and the other Loan Parties
contained in the Credit Agreement and each of the other Loan Documents is
true and correct on the date hereof after giving effect to the waiver
contained herein.
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(c)
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Borrowers
hereby agree to pay on demand all reasonable fees and expenses of counsel
to Administrative Agent incurred by Administrative Agent in connection
with the preparation, negotiation and execution of this Letter Agreement
and all related documents.
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(d)
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This
Letter Agreement may be executed in counterparts, and all parties need not
execute the same counterpart; however, no party shall be bound by this
Letter Agreement until a counterpart hereof has been executed by Borrowers
and Required Lenders. Facsimiles or other electronic
transmissions shall be effective as
originals.
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(e)
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THIS
LETTER AGREEMENT REPRESENTS THE FINAL AGREEMENT AMONG THE PARTIES AND MAY
NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS AMONG THE PARTIES.
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(f)
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This
Letter Agreement shall be governed by, and construed in accordance with,
the laws of the State of New York.
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(g)
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This
Letter Agreement constitutes a “Loan Document” under and as defined in the
Credit Agreement.
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[Signature
Pages to Follow]
Please
evidence your agreement to each of the provisions of this Letter Agreement by
executing a counterpart hereof where indicated and returning a fully executed
counterpart to Xxxxxx Xxxx, counsel for Administrative Agent, via facsimile
number (000) 000-0000 or via electronic e-mail at xxxxx@xxxxx.xxx, with
four (4) originals delivered to Xxxxxx Xxxx via overnight delivery at: Xxxxxx
& Xxxxxx L.L.P., 0000 Xxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx
00000.
Very truly yours,
JPMORGAN CHASE BANK,
N.A., individually as a Lender and as Administrative
Agent
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By: | /s/ Xxxx X. Xxxxxxxx | ||
Name: | Xxxx X. Xxxxxxxx | ||
Title: | Vice President |
BANK OF AMERICA, N.A.,
individually as a Lender
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By: | |||
Name: | |||
Title: |
UBS LOAN FINANCE LLC,
individually as a
Lender
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By: | /s/ Xxxx X. Xxxxx | ||
Name: | Xxxx X. Xxxxx | ||
Title: | Associate Director |
By: | /s/ Xxxxx Xxxxxx | |
Name: | Xxxxx Xxxxxx | |
Title: | Associate Director |
XXXXX FARGO FOOTHILL,
LLC, individually as a Lender
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By: | /s/ Xxxx Xxxxxxx | ||
Name: | Xxxx Xxxxxxx | ||
Title: | Vice President |
BMO CAPITAL MARKETS FINANCING,
INC., individually as a Lender
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By: | |||
Name: | |||
Title: |
SIEMENS FINANCIAL SERVICES,
INC., individually as a Lender
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By: | |||
Name: | |||
Title: |
WACHOVIA BANK, NATIONAL
ASSOCIATION, individually as a Lender
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By: | /s/ M. Galovican | ||
Name: | M. Galovican | ||
Title: | Director |
Acknowledged
and Agreed
as of the
12th day of March, 2009 by:
AVENTINE
RENEWABLE ENERGY, INC.
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By: | /s/ Xxxxxx Xxxxxx | ||
Xxxxxx
Xxxxxx, Chief Executive Officer
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AVENTINE
RENEWABLE ENERGY – MT XXXXXX, LLC
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By: | /s/ Xxxxxx Xxxxxx | ||
Xxxxxx
Xxxxxx, Chief Executive Officer
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AVENTINE
RENEWABLE ENERGY – XXXXXX XXXX, LLC
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By: | /s/ Xxxxxx Xxxxxx | ||
Xxxxxx
Xxxxxx, Chief Executive Officer
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AVENTINE
RENEWABLE ENERGY H OLDINGS, INC.
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By: | /s/ Xxxxxx Xxxxxx | ||
Xxxxxx
Xxxxxx, Chief Executive Officer
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AVENTINE
RENEWABLE ENERGY, LLC
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By: | /s/ Xxxxxx Xxxxxx | ||
Xxxxxx
Xxxxxx, Chief Executive Officer
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AVENTINE
POWER, LLC
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By: | /s/ Xxxxxx Xxxxxx | ||
Xxxxxx
Xxxxxx, Chief Executive Officer
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NEBRASKA
ENERGY, L.L.C.
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By: | /s/ Xxxxxx Xxxxxxx | ||
Xxxxxx
Xxxxxxx, President
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