SIXTH AMENDMENT
TO
LEASE AGREEMENT
AND
REAFFIRMATION OF
GUARANTY
By and Among
The Ports of
Indiana
Aventine Renewable Energy-Mt
Vernon, LLC
And
Aventine Renewable Energy
Holdings, Inc.
SIXTH AMENDMENT TO LEASE
AGREEMENT
AND REAFFIRMATION OF
GUARANTY
THIS SIXTH AMENDMENT TO LEASE AGREEMENT AND
REAFFIRMATION OF GUARANTY (" Sixth Amendment ") is made and
entered into this 12th day of February, 2009 by and among the PORTS
OF INDIANA, a body corporate and politic existing under the laws of
the State of Indiana and formerly known as the Indiana Port
Commission (the " Ports "), AVENTINE RENEWABLE ENERGY-MT
VERNON, LLC a Delaware Limited Liability Company (" Lessee
", and together the " Parties ") and AVENTINE RENEWABLE
ENERGY HOLDINGS, INC. (" Guarantor ").
RECITALS:
A. The Ports is
charged with the management and operation of the Ports of Indiana,
including the Port of Indiana-Mount Vernon, in Posey County,
Indiana (the " Port ").
B. The Parties
entered into a certain Lease Agreement dated October 31, 2006,
which was executed by the Office of the Attorney General and the
Office of the Governor on January 19, 2007 and January 24, 2007
respectively (the " Original Lease "), which Original Lease
was amended by (i) a certain First Amendment to Lease Agreement and
Reaffirmation of Guaranty dated June 14, 2007 among the Parties and
Guarantor, (ii) a certain Second Amendment to Lease Agreement and
Reaffirmation of Guaranty dated October 18, 2007 among the Parties
and Guarantor, (iii) a certain Third Amendment to Lease Agreement
and Reaffirmation of Guaranty dated December 20, 2007 among the
Parties and Guarantor, (iv) a certain Fourth Amendment to Lease
Agreement and Reaffirmation of Guaranty dated June 19, 2008, and
(v) a certain Fifth Amendment to Lease Agreement and Reaffirmation
of Guaranty dated December 18, 2008 among the Parties and Guarantor
(said Original Lease as so amended is herein referred to as the "
Lease "), whereby the Ports leased to Lessee and Lessee
leased from the Ports that certain real estate described in the
Lease, located at the Port of Indiana-Mount Vernon, a port managed
and operated by the Ports in Posey County, Indiana.
C. The Parties have
agreed to amend the Lease to remove from the Leased Premises
approximately 2.37 +/- acres (hereafter “ Tract 1
”) and the return of Tract 1 to the Ports for the
construction of additional storage rail tracts and to make other
changes in the legal descriptions of the Leased
Premises.
D. Guarantor is
joining in the execution of this Sixth Amendment solely for
purposes of consenting to all provisions of this Sixth Amendment
and ratifying, confirming and reaffirming its obligations under
that certain Lease Guaranty dated as of October 31, 2006 (the "
Lease Guaranty ").
E. Lessee, the Ports
and Guarantor have each had substantial participation in the
preparation of this Sixth Amendment which shall become effective
upon execution by the Parties.
F. At a properly
convened public meeting of the Commission of the Ports, the duly
authorized officers have approved the execution and delivery of
this Sixth Amendment.
NOW, THEREFORE, in consideration of
the foregoing premises, the mutual undertakings hereinafter set
forth, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Ports, Lessee and
Guarantor (solely for purposes of its agreement to the provisions
of Paragraphs 3 and 4 below) hereby agree as follows:
1. The
Parties previously entered into a Fourth Amendment to Lease
Agreement and Reaffirmation of Guaranty dated June 19,
2008. In part the Fourth Amendment added the following
language:
5
(a) Note
to east portion of Parcel #1 concerning additional railroad tracts
to be installed by the Commission to serve Consolidated Grain and
Barge, to the effect that: “Additional railroad tracks to be
installed by the Indiana Port Commission, land to be surrendered
back to the Commission and deleted from the Leased Premises by an
amendment to the Lease between the Commission and Aventine
Renewable Energy-Mt Vernon, LLC.”
2. The
Parties agreed in Section 5 of the Fourth Amendment to enter into
amendments to the Lease to reflect as-built and other conditions of
the Real Estate. In reference to Section 5(a) of the
Fourth Amendment as recited in Paragraph 1 of this Sixth Amendment,
certain acreage of the Real Estate will be removed from the Leased
Premises and surrendered back to the Ports. The land to be
surrendered back to the Ports, defined herein as Tract 1, consists
of approximately 2.37 +/- acres and is more particularly described
and depicted in the drawing and description attached hereto, made a
part hereof, and marked as Exhibit 1
SBH-50009020512190 . A metes and bounds
description, as well as the actual acreage of Tract 1, will be
established by the “as built” ALTA/ACSM Land Title
Survey of the Leased Premises, containing Table A Items 1-4, 6, 7a,
8-10, 11a and 13 (the " As Built Survey ") to be
provided by Lessee pursuant to paragraph 4 hereafter.
3. Attached
to said Fourth Amendment, as well as to this Sixth Amendment, is
Exhibit A – Description of Leased Real Estate ,
(“ Exhibit A ”). Exhibit A describes
the Leased Premises as consisting of 118.05 acres.
4. By
agreement of the Parties a final As Built Survey is to be performed
by Lessee when the project is at a stage when the actual boundaries
are readily identifiable, including all necessary easements and
rights of way, but in no event later than December 31,
2009.
5. Article
III of the Lease provides that Lessee shall pay Initial Ground Rent
of Three Thousand Two Hundred Dollars ($3,200) per acre per year,
and Section 1.01 of the Lease identifies the demised real estate as
approximately 116 acres, more or less.
6. It
is further agreed by the Parties that an adjustment to the Initial
Ground Rent paid and payable by Lessee will be made upon completion
of the As Built Survey. The Parties acknowledge that
since the execution of the Lease, Lessee has occupied more than the
116 acres. Specifically, Lessee has occupied 117.808
acres from October 31, 2006 until increased to 118.05 on June 19,
2008; and reduced by 2.37 acres on February 12, 2009. Until the As
Built Survey is
completed and the adjustment to the
Initial Ground Rent is calculated, the Initial Ground Rent shall
continue to be based upon the 116 acres. Upon completion
of the As Built Survey, the Ports will calculate the actual Initial
Ground Rent that should have been paid since October 31, 2006 based
upon the actual acreage occupied by Lessee as such acreage has
changed as set forth above (the " True Up Rent "). The
Initial Ground Rent that has been paid based upon the 116 acres
shall be subtracted from the True Up Rent and the difference,
if any, shall be paid by Lessee within 30 days of receipt of the
invoice from the Ports. In the event that the result of
the True Up Rent comparison is a negative amount, such that Lessee
has overpaid based on actual acreage occupied, then the Port shall
issue a credit to Lessee on the next month’s rent
due.
7. Lessee
hereby releases and surrenders back to the Ports Tract 1, and the
Ports hereby accept Tract 1 and the same is hereby removed and
deleted from the Demised Premises.
8. Guarantor
hereby consents to the amendments to the Lease made by this Sixth
Amendment and agrees that such amendments shall not affect, impair,
discharge, relieve or release Guarantor of its obligations under
the terms of the Lease Guaranty, and that such Lease Guaranty shall
be deemed to reference the Lease as amended
hereby. Guarantor hereby ratifies, confirms and
reaffirms in all respects, the Lease Guaranty, and agrees that said
Lease Guaranty shall continue in full force and effect.
9. The
Ports and Lessee agree that the above and foregoing Recitals are
true, correct and complete and are hereby incorporated and made a
part of this Sixth Amendment as if completely and fully set forth
herein. Capitalized terms used in this Sixth Amendment
without definition shall have the meanings set forth in the Lease
as previously amended, except that any internal references in the
Lease to the word " Lease " shall mean the Lease, as
previously and hereby amended, wherever therein the context so
requires in order to give meaning to this Sixth
Amendment.
10. Lessee
and the Ports hereby affirm, reaffirm and confirm that as of the
date hereof the Lease is in full force and effect, that the Lease
has not been modified or amended (except as provided in this Sixth
Amendment) and that all of the Ports' and Lessee's obligations
accrued to date have been performed. Lessee and Ports
hereby agree that there are, as of the date hereof, regardless of
the giving of notice or the passage of time, or both, no defaults
or breaches on the part of the Ports or Lessee under the Lease, as
amended by this Sixth Amendment. Each of Lessee and the
Ports hereby ratify the provisions of the Lease on behalf of
themselves and their respective successors and assigns and agree to
attorn and be bound to each other and their respective successors
and assigns as to all of the terms, covenants and conditions of the
Lease, as amended hereby. This Sixth Amendment shall be
incorporated into and made a part of the Lease and all provisions
thereof not expressly modified or amended hereby shall remain in
full force and effect. Nothing contained in this Sixth
Amendment (except, as applicable, for the specific amendments to
the Lease set forth in this Sixth Amendment) shall release or
relieve Lessee or Ports from their respective obligations or
liabilities under the Lease accruing prior to the date
hereof.
11. Except
as expressly amended and modified by this Sixth Amendment, the
Lease shall otherwise remain in full force and effect, the parties
hereto hereby ratifying and confirming
the same. This Sixth
Amendment, together with the Lease, is the complete understanding
between the parties and supersedes all other prior agreements and
representations concerning its subject matter. To the
extent of any inconsistency between the Lease and this Sixth
Amendment, the terms of this Sixth Amendment shall
control.
12. Immediately
following the signature page of this Sixth Amendment is the
Addendum of State required contract provisions previously executed
by the Parties. The Parties reaffirm the covenants and
affirmations contained in said Addendum and incorporate the same
into this Sixth Amendment.
(Remainder of Page left blank,
signature Page to follow)
