SECOND AMENDMENT TO JOINT VENTURE AGREEMENT
EXHIBIT
10.2
SECOND
AMENDMENT TO
THIS
SECOND AMENDMENT TO JOINT VENTURE AGREEMENT (the “Second Amendment”) is made and
entered into effective as of November 20, 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
amended by the parties as of August 30, 2006 (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
Second 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)
Section 1.9, Definitions and Interpretation, “Effective Date”, of the JV
Agreement is hereby deleted in its entirety and the revised Section 1.9,
Definitions and Interpretation, “Effective Date”, shall read in full as
follows:
“Effective
Date” means November 22, 2007.
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
Second 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 Second Amendment, and all such separate
counterparts shall constitute but one and the same Second 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.
IN
WITNESS WHEREOF, this Second 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/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |
|
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ |
||
| Title: Manager | ||
| ETHANEX: | ||
| ETHANEX ENERGY NORTH AMERICA, INC., a Delaware corporation | ||
| |
|
|
| By: | /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | |
|
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ |
||
| Title: President & CEO | ||