FOURTH AMENDMENT TO JOINT VENTURE AGREEMENT
Exhibit
10.2
FOURTH
AMENDMENT TO
THIS
FOURTH
AMENDMENT TO JOINT VENTURE AGREEMENT (the “Fourth Amendment”) is made and
entered into effective as of December 8, 2006, by and between SEMO
Milling, LLC,
a
Missouri limited liability company (“SEMO”), and Ethanex
Energy North America, Inc.,
a
Delaware corporation (“Ethanex”).
RECITALS
WHEREAS,
Ethanex and SEMO signed
a
non-binding letter of intent dated July 3, 2006, as subsequently amended,
regarding the establishment of a joint venture company to develop, commercialize
and exploit certain technology of SEMO in connection with the production,
distribution and sale of ethanol and ethanol-related products and corn and
corn-based products from SEMO’s Cape Girardeau, Missouri facility;
WHEREAS,
Ethanex and SEMO entered into a Joint Venture Agreement dated August 4, 2006,
as
subsequently amended (the “JV Agreement”), for the formation, organization,
management and operation of a joint venture company known as Ethanex at SEMO
Port, LLC; and
WHEREAS,
Ethanex and SEMO desire to further amend the JV Agreement as set forth in
this
Fourth Amendment.
NOW,
THEREFORE, in consideration of the above Recitals, which are incorporated
herein
by reference, and the mutual agreements contained herein and for other good
and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Ethanex and SEMO agree as follows:
1. Definitions.
Capitalized terms used but not otherwise defined herein shall have the meanings
given to such terms in the JV Agreement.
2. Amendments
to Joint Venture Agreement.
Ethanex
and SEMO agree and confirm that the JV Agreement shall be amended as
follows:
(a)
Article 1, Definitions and Interpretation, Section 1.3, “Construction Completion
Date”, of the JV Agreement is hereby deleted in its entirety and the revised
Section 1.3, “Construction Completion Date”, shall read in full as
follows:
“Construction
Completion Date” means July 1, 2008.
(b)
Article 1, Definitions and Interpretation, Section 1.4, “Construction Start
Date”, of the JV Agreement is hereby deleted in its entirety and the revised
Section 1.4, “Construction Start Date”, shall read in full as
follows:
“Construction
Start Date” means March 15, 2007.
(c)
Article 1, Definitions and Interpretation, Section 1.8, “Deposit”, of the JV
Agreement is hereby deleted in its entirety and the revised Section 1.8,
“Deposit”, shall read in full as follows:
“Deposit”
means the sum of $2,000,000 and such further amounts as needed to be paid
by
Ethanex to the Company, as more fully described in Article
3
below.
(d) Article
1, Definitions and Interpretation, Section 1.9, “Effective Date”, of the JV
Agreement is hereby deleted in its entirety and the revised Section 1.9,
“Effective Date”, shall read in full as follows:
“Effective
Date” means January 30, 2007.
(e)
Section 3.3, Deposit; Disposition of Deposit, of the JV Agreement is hereby
deleted in its entirety and the revised Section 3.3 shall read in full as
follows:
The
Parties agree that Ethanex will pay such further amounts towards the Deposit
as
is necessary to fund the capitalizable assets of the Company including, without
limitation, the design, engineering and construction start-up costs of the
Plant
and the purchase of equipment to be used in the operation of the Plant.
(f)
A new
Section 3.4, Deposit; Disposition of Deposit, of the JV Agreement is hereby
inserted and shall read in full as follows:
The
Parties agree that the sums contributed to the Deposit shall be credited
towards
the Ethanex Cash Contribution to be contributed by Ethanex to the Company
as set
forth in Section
4.1
below.
In the event this JV Agreement is terminated prior to the Effective Date
(except
for a termination caused by SEMO’s breach or insolvency as described in
Section
12.2
below),
the Deposit shall be deemed a cancellation fee and SEMO and the Company shall
have no obligation to return or refund the Deposit to Ethanex.
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(g) Section
6.2, Governance, of the JV Agreement is hereby deleted in its entirety and
the
revised Section 6.2 shall read in full as follows:
The
Chairperson of the Board shall initially be appointed by SEMO and shall serve
for a term commencing on the Effective Date and expiring twelve (12) months
following the Construction Completion Date, after which Ethanex shall appoint
the Chairperson who shall serve for the subsequent two (2) years. Thereafter,
every two (2) years, the Parties shall alternate the appointments of the
Chairperson accordingly. The Chairperson shall preside over all Board meetings
and, in the event of a deadlock by the Board, shall cast the deciding vote
of
the Board. The Chairperson of the Board also shall serve as the Manager of
the
Company as set forth in the Operating Agreement.
(h) Section
7.1(a), Obligations of the Parties, of the JV Agreement is hereby deleted
in its
entirety and the revised Section 7.1(a) shall read in full as
follows:
obtain
and secure, on or before the Construction Start Date, non-recourse debt
financing from one or more Third Party in the amount necessary to complete
the
Plant and Corn Mill (the “Third Party Financing”) to ensure sufficient project
financing for the timely design and construction of the Plant without requiring
additional capital contributions to the Company from Ethanex or
SEMO;
(i) Section
7.1(b), Obligations of the Parties, of the JV Agreement is hereby deleted
in its
entirety and the revised Section 7.1(b) shall read in full as
follows:
use
its
commercially best efforts to cooperate with SEMO and in interacting with
engineers, contractors, vendors and other consultants engaged by the Company
to
provide products or services for the Company in order to complete construction
of the Plant by the Construction Completion Date;
(j)
Section
7.1(d), Obligations of the Parties, of the JV Agreement is hereby deleted
in its
entirety and the revised Section 7.1(d) shall read in full as follows:
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use
its
commercially best efforts to coordinate with Delta T Corporation and TIC
Holdings, Inc., or firms of equivalent experience and resources, together
with
the other necessary design and construction professionals, to begin construction
of the Plant no later than the Construction Start Date;
(k)
Section 7.1(e), Obligations of the Parties, of the JV Agreement is hereby
deleted in its entirety and the revised Section 7.1(e) shall read in full
as
follows:
obtain
and secure, on or before January 26, 2007, all applicable permits required
by
the Missouri Department of Natural Resources and any other Governmental
Authority to commence construction and operation of the Plant;
(l)
Section 7.1(f), Obligations of the Parties, of the JV Agreement is hereby
deleted in its entirety and the revised Section 7.1(f) shall read in full
as
follows:
use
its
commercially best efforts to enter into a written contract with a nationally
recognized EPC contractor, prior to January 26, 2006, to provide detailed
engineering, procurement, and construction work as is necessary to ensure
that
construction of the Plant shall commence no later than the Construction Start
Date (the “EPC Contract”), upon terms and conditions acceptable to SEMO.
(m)
Section 7.2(b), Obligations of the Parties, of the JV Agreement is hereby
deleted in its entirety and the revised Section 7.2(b) shall read in full
as
follows:
use
its
commercially best efforts to assist Ethanex and the Company with the
coordination and direction of engineers, contractors, vendors and consultants
engaged by the Company to provide products or services to the Company in
order
to complete the construction of the Plant by the Construction Completion
Date;
(n)
Section 12.3, Term and Termination, of the JV Agreement is hereby deleted
in its
entirety and revised Section 12.3 shall read in full as follows:
INTENTIONALLY
DELETED.
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(o) Section
12.4, Term and Termination, of the JV Agreement is hereby deleted in its
entirety and revised Section 12.4 shall read in full as follows:
INTENTIONALLY
DELETED.
(p) Section
16.1 of the JV Agreement is hereby revised to read in relevant part:
|
If
to Ethanex:
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00000
Xxxxxxxx Xxxx, Xxxxx X
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Xxxxxxx,
Xxxxxx 00000
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Attn:
Xxxxxx Xxxxx, President & CEO
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Fax:
000.000.0000
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3. Effect.
The
Parties acknowledge and agree that, except as amended herein, the JV Agreement
is in full force and effect and is hereby ratified and confirmed.
4. Governing
Law.
The
validity, performance, construction and effect of this Amendment shall be
governed by the laws of the State of Missouri, without regard to conflict
of law
principles.
5. Counterparts.
This
Fourth Amendment (i) may be executed by facsimile signatures and in several
counterparts, and each counterpart when so executed and delivered shall
constitute an original of this Fourth Amendment, and all such separate
counterparts shall constitute but one and the same Fourth Amendment and
(ii) embodies the entire agreement and understanding between the parties
with respect to the subject matter hereof and supersedes all prior agreements,
consents and understandings related to such subject matter.
[EXECUTION
PAGE TO FOLLOW]
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IN
WITNESS WHEREOF,
this
Fourth Amendment to Joint Venture Agreement has been executed as of the date
first set forth above.
| SEMO: | ||
| SEMO MILLING, LLC, a Missouri limited liability company | ||
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| By: | /s/ Xxxxxxx X. XxXxxx | |
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Name: Xxxxxxx X. XxXxxx |
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| Title: Manager | ||
| ETHANEX: | ||
| ETHANEX ENERGY NORTH AMERICA, INC., a Delaware corporation | ||
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| By: | /s/ Xxxxx Xxxxxxxxx | |
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Name: Xxxxx Xxxxxxxxx |
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| Title: President & CEO | ||
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