FOURTH AMENDMENT
TO
JOINT VENTURE
AGREEMENT
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
Depo
