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 is
entered into this 30th day of May, 2008, by and between Fagen, Inc., a
Minnesota Corporation (“Fagen”) and Akron Riverview Corn Processors, LLC, an
Iowa 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 Second
Amendment to the Letter of Intent on November 9, 2007  (collectively the “LOI”), and hereby agree to
the additional amendments and extension of the LOI as set forth below.


 


Notwithstanding anything to the contrary contained in the LOI between
the parties hereto, and in consideration of the mutual promises, covenants, and
conditions contained in the LOI and contained herein, and for other good
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto covenant and agree that the terms and
conditions of this Third Amendment and Extension shall prevail.


 


The parties hereto agree as follows:


 


1.             The
Letter of Intent shall be extended to December 31, 2008.  The second sentence in the second paragraph
of page 1 shall be stricken and replaced to reflect this extension as
follows:


 


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


 


2.             Paragraph
2 provides the Contract Price.  The
parties hereby agree that the Contract Price shall be the lesser of (a) One
Hundred Forty-Nine Million, Nine Hundred Eleven Thousand Eight Hundred
Sixty-Nine Dollars ($149,911,869), which amount includes the costs for the additional
items 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 current
price for a 100 MGY ethanol plant plus the costs of the additional items and services
set forth in the March 1, 2007 Change Order.  The foregoing Contract Price shall be
effective 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 introductory
paragraph in Paragraph 2 shall be stricken and replaced as follows:


 


Contract Price.  Owner shall pay Fagen
the lesser of (a) One Hundred Forty-Nine Million, Nine Hundred Eleven
Thousand Eight Hundred Sixty-Nine Dollars ($149,911,869) (the “Contract Price”),
which amount includes the costs for the additional items 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 current price for the ethanol
plant described in the LOI plus the costs of the additional items and services set
forth in the March 1, 2007 Change Order as full consideration to Fagen for
complete performance of the services described in the Design-Build Agreement including
the items and services in the March 1, 2007 Change Order and all costs
incurred in connection therewith, provided, however, that if Owner does not
issue a valid Notice to Proceed before December 1, 2008, then on such date
the Contract Price shall automatically adjust to Fagen’s then current price for
the ethanol plant described in the LOI plus the costs of the items and services
set forth in the March 1, 2007 Change Order.  Assuming a valid Notice to Proceed is not
issued in December 2008, and further assuming that the LOI is not
terminated as provided herein, the Contract Price shall thereafter readjust on
the first day of each succeeding month to Fagen’s then current price for the
ethanol plant described in the LOI plus the costs of the items and services set
forth in the March 1, 2007 Change Order.


 


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


 


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


 


5.             Paragraph
3(m)(9) of the LOI provides the date upon which Owner must fulfill the
requirements for the issuance of the Notice to Proceed.  The parties agree that this date shall be
extended to December 31, 2008.  In
addition, the parties agree that once the Notice to Proceed is accepted by
Fagen, 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)       Fagen
has provided Owner written notification of its acceptance of the Notice to
Proceed.  If Owner has not fulfilled its
requirements for the issuance of a Notice to Proceed as set forth in this Paragraph
3(m) by December 31, 2008, Fagen may, at its sole option, terminate
the Design-Build Agreement, thus releasing Fagen of all obligations.  Once accepted by Fagen, the Notice to Proceed
shall be deemed effective on the date on which such Notice to Proceed was
received by Fagen.


 


6.             Paragraph
11 shall be stricken and replaced as follows to reflect the extension of the
LOI to December 31, 2008:


 


2

















 


Termination.  This Letter of Intent may be terminated by either
Party on December 31, 2008 unless the basic size and design of the Plant
have been determined and mutually agreed upon, a specific site or sites have
been determined and mutually agreed upon, and at least 10% of the necessary
equity has been raised.  This date may be
extended upon mutual written agreement of the Parties.  Furthermore, unless otherwise agreed to by
the Parties, this Letter of Intent will terminate:


 


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


 


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


 


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


 


IN WITNESS WHEREOF, the parties hereto have executed this Third Amendment
and 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

  
								



 


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