**Exhibit 10.1**

 

**THIRD AMENDMENT and EXTENSION**

**to**

**LETTER OF INTENT**

**DATED MARCH 1, 2007**

**by and between**

**FAGEN, INC.**

**and**

**AKRON RIVERVIEW CORN PROCESSORS, LLC**

 

This **Third Amendment and Extension** isentered into this 30th day of May, 2008, by and between Fagen, Inc., aMinnesota Corporation (“Fagen”) and Akron Riverview Corn Processors, LLC, anIowa Limited Liability Company (“Owner”).

 

The parties entered into a Letter of Intent dated March 1, 2007,an Amendment to the Letter of Intent on May 10, 2007, and a SecondAmendment to the Letter of Intent on November 9, 2007  (collectively the “LOI”), and hereby agree tothe additional amendments and extension of the LOI as set forth below.

 

Notwithstanding anything to the contrary contained in the LOI betweenthe parties hereto, and in consideration of the mutual promises, covenants, andconditions contained in the LOI and contained herein, and for other goodvaluable consideration, the receipt and sufficiency of which are herebyacknowledged, the parties hereto covenant and agree that the terms andconditions of this Third Amendment and Extension shall prevail.

 

The parties hereto agree as follows:

 

1.             TheLetter of Intent shall be extended to December 31, 2008.  The second sentence in the second paragraphof page 1 shall be stricken and replaced to reflect this extension asfollows:

 

“The Parties agree that Transaction Documentsmust be executed and delivered by the parties thereto no later than December31,2008 (the “Closing Date”) or this Letter of Intent may be terminated inaccordance with Paragraph 11(a) hereof.”

 

2.             Paragraph2 provides the Contract Price.  Theparties hereby agree that the Contract Price shall be the lesser of (a) OneHundred Forty-Nine Million, Nine Hundred Eleven Thousand Eight HundredSixty-Nine Dollars ($149,911,869), which amount includes the costs for the additionalitems and services set forth in the Amendment to the Letter of Intent dated March 1,2007 (the “March 1, 2007 Change Order”), or (b) Fagen’s then currentprice for a 100 MGY ethanol plant plus the costs of the additional items and servicesset forth in the March 1, 2007 Change Order.  The foregoing Contract Price shall beeffective through November 30, 2008. If Owner does not issue a valid Notice to Proceed before December 1,2008, then on such date the Contract Price shall adjust as 

 

1

----

 

provided below.  Therefore, the introductoryparagraph in Paragraph 2 shall be stricken and replaced as follows:

 

**Contract Price. **Owner shall pay Fagenthe lesser of (a) One Hundred Forty-Nine Million, Nine Hundred ElevenThousand Eight Hundred Sixty-Nine Dollars ($149,911,869) (the “Contract Price”),which amount includes the costs for the additional items and services set forthin the Amendment to the Letter of Intent dated March 1, 2007 (the “March 1,2007 Change Order”), or (b) Fagen’s then current price for the ethanolplant described in the LOI plus the costs of the additional items and services setforth in the March 1, 2007 Change Order as full consideration to Fagen forcomplete performance of the services described in the Design-Build Agreement includingthe items and services in the March 1, 2007 Change Order and all costsincurred in connection therewith, provided, however, that if Owner does notissue a valid Notice to Proceed before December 1, 2008, then on such datethe Contract Price shall automatically adjust to Fagen’s then current price forthe ethanol plant described in the LOI plus the costs of the items and servicesset forth in the March 1, 2007 Change Order.  Assuming a valid Notice to Proceed is notissued in December 2008, and further assuming that the LOI is notterminated as provided herein, the Contract Price shall thereafter readjust onthe first day of each succeeding month to Fagen’s then current price for theethanol plant described in the LOI plus the costs of the items and services setforth in the March 1, 2007 Change Order.

 

3.             Paragraph 2(b) is stricken to deletethe increase to the Contract Price resulting from an increase in theConstruction Cost Index.

 

4.             Paragraph 2(c) is stricken to deletethe monthly surcharge to the Contract Price.

 

5.             Paragraph3(m)(9) of the LOI provides the date upon which Owner must fulfill therequirements for the issuance of the Notice to Proceed.  The parties agree that this date shall beextended to December 31, 2008.  Inaddition, the parties agree that once the Notice to Proceed is accepted byFagen, it will be deemed effective on the date it was received by Fagen;therefore Paragraph 3(m)(9) shall be stricken and replaced as follows:

 

3(m)(9)       Fagenhas provided Owner written notification of its acceptance of the Notice toProceed.  If Owner has not fulfilled itsrequirements for the issuance of a Notice to Proceed as set forth in this Paragraph3(m) by December 31, 2008, Fagen may, at its sole option, terminatethe Design-Build Agreement, thus releasing Fagen of all obligations.  Once accepted by Fagen, the Notice to Proceedshall be deemed effective on the date on which such Notice to Proceed wasreceived by Fagen.

 

6.             Paragraph11 shall be stricken and replaced as follows to reflect the extension of theLOI to December 31, 2008:

 

2

----

 

**Termination.**  This Letter of Intent may be terminated by eitherParty on December 31, 2008 unless the basic size and design of the Planthave been determined and mutually agreed upon, a specific site or sites havebeen determined and mutually agreed upon, and at least 10% of the necessaryequity has been raised.  This date may beextended upon mutual written agreement of the Parties.  Furthermore, unless otherwise agreed to bythe Parties, this Letter of Intent will terminate:

 

(a)                                  atthe option of either Fagen or Owner if the Design-Build Agreement is not completedand executed by the Closing Date; or

 

(b)                                 uponthe execution and delivery of the Transaction Documents.

 

The other provisions of the LOI shall remainunchanged and in full force and effect.

 

IN WITNESS WHEREOF, the parties hereto have executed this Third Amendmentand Extension on the date set forth above.

 
| FAGEN, INC. |                                                                                                          | AKRON RIVERVIEW CORN |
|-------------|---------------------------------------------------------------------------------------------------------------|----------------------|
|        |                                                                                                          | PROCESSORS, LLC      |
|        |                                                                                                          |
|        |                                                                                                          |                 |   |
| By:         |      /s/ Ron Fagen                                                                        |                 | By: |      /s/ Stephen C. Roe |
| Title       |                 President and  CEO |                 | Title |                 President |
|             |                                                                                                               |                      |  |  |  |  |  |

 

3

----