Unassociated Document


    

      K&E
        Draft 3/10/08


      FIRST
        AMENDMENT TO THE

       

      ASSET
        PURCHASE AGREEMENT

       

      THIS
        FIRST AMENDMENT (“Amendment”),
        dated
        as of March 11, 2008 with an effective date as of March 10, 2008 (the “Effective
        Date”), is made to that certain Asset Purchase Agreement, dated February 10,
        2008 (the “Agreement”),
        by
        MIDWEST RENEWABLE ENERGY, LLC, a Nebraska limited liability company
        (“Seller”),
        ETHANEX ENERGY, INC., a Nevada corporation (“Ethanex”),
        Ethanex Sutherland Land, LLC, a Delaware limited liability company that is
        wholly owned by Ethanex Sutherland (“RE
        LLC”),
        Ethanex Sutherland, LLC, a Delaware limited liability company that is wholly
        owned by Ethanex (“Ethanex
        Sutherland”),
        Ethanex Phase I, LLC, a Delaware limited liability company that is wholly
        owned
        by Ethanex Sutherland (“Phase
        I Buyer”),
        Ethanex Phase II, LLC, a Delaware limited liability company that is wholly
        owned
        by Ethanex Sutherland (“Phase
        II Buyer”),
        and
        Ethanex Phase III, LLC, a Delaware limited liability company that is wholly
        owned by Ethanex Sutherland (“Phase
        III Buyer,”
and
        together with Phase I Buyer, Phase II Buyer and RE LLC, “Buyers”
or
        the
“Buyer
        Group”).
        All
        capitalized terms used but not defined herein shall have the meanings given
        such
        terms in the Agreement.

       

      WHEREAS,
        the Seller, Ethanex, Ethanex Sutherland and the Buyer Group are parties to
        the
        Agreement; and, 

       

      WHEREAS,
        each of the Seller, Ethanex, Ethanex Sutherland and the Buyer Group desire
        to
        amendment the Agreement to provide for an extension of a certain termination
        date.

       

      NOW
        THEREFORE, in consideration of the mutual covenants and agreements set forth
        herein, and other good and valuable consideration, the receipt and sufficiency
        of which are hereby acknowledged, the parties hereto, intending to be legally
        bound, in accordance with Section 17 of the Agreement hereby amend the Agreement
        as follows:

      


      ARTICLE
        I

      


      AMENDMENT

      


      Section
        1.01 Amendment
        to Section 12(a)(viii).
        Section
        12(a)(viii) of the Agreement is hereby amended by deleting such section in
        its
        entirety and replacing it with the following:

      


      “(viii) at
        any
        time after March 5, 2008, by Seller or Ethanex if, by such date, either (i)
        Ethanex has not received interim financing of at least $1.5 million or (ii)
        Ethanex has not entered into a legally binding agreement pursuant to which
        it
        will have available to it interim financing of at least $1.5 million and
        all
        conditions to the funding of such commitment have not been satisfied; provided,
        that this termination right may not be exercised after March 31,
        2008.”

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      


      ARTICLE
        II

      


      MISCELLANEOUS

      


      Section
        2.01. Ratification
        of Other Terms.
        Except
        as set forth herein, the Agreement shall remain and continue in full force
        and
        effect. It
        is
        agreed by the parties that all references to the Agreement from and after
        the
        Effective Date made by them in any document or instrument delivered pursuant
        to
        or in connection with the Agreement
        shall
        be
        deemed to refer to the Agreement as amended by this Amendment.

      


      Section
        3.03. Governing
        Law.
        This
        Amendment shall be governed by and construed in accordance with the laws
        of the
        State of Delaware without regard to the principles of conflicts of law of
        such
        state.

      


      Section
        3.04. Entire
        Agreement.
        This
        Amendment and the Agreement embody the entire agreement and understanding
        between the parties hereto with respect to the subject matter hereof and
        supersede all prior agreements and understandings relating to the subject
        matter.

      


      Section
        3.05. Severability.
        The
        invalidity or unenforceability of any provision of this Amendment shall not
        affect the validity or enforceability of any other provision of this Amendment.
        

      


      Section
        3.06. Counterparts.
        This
        Amendment may be executed in any number of counterparts, and each such
        counterpart shall be deemed to be an original instrument, but all such
        counterparts together shall constitute but one agreement. This Amendment
        may be
        executed by facsimile signature(s), which shall be deemed to be
        originals.

      


      [Remainder
        of Page Intentionally Blank; Signature Pages Follow]

       

      
        
          
          

        

        
          2

          
            

          

        

        
          
          

        

      


      IN
        WITNESS WHEREOF, the undersigned have executed this First Amendment as of
        the
        date set forth above.

       

      
        	 	 	 
	 	MIDWEST
                RENEWABLE
                ENERGY LLC
	 
 	 
 	 
 
	 	By:  	/s/ James G. Jandrain
	 	
                
                  

                

                
                  Name:  James
                    G. Jandrain

                  Title:  
                     Chairman of the Board

                

              
	 	 


      

      
        	 	 	 
	 	ETHANEX
                SUTHERLAND, LLC
	 
 	 
 	 
 
	 	By:  	/s/ Albert W. Knapp
	 	
                
                  
Name:  Albert
                  W. Knapp

                
                  
                    Title:    President
                      and CEO

                  

                

              
	 	 


      

      
        	 	 	 
	 	ETHANEX
                PHASE I,
                LLC
	 
 	 	
                 

              
	 	By:  	/s/ Albert W. Knapp
	 	
                
                  

                

                
                  Name: 
                    Albert W. Knapp

                  Title:   
                    President and CEO

                

              
	 	 


      

      
        	 	 	 
	 	ETHANEX
                PHASE II,
                LLC
	 
 	 
 	 
 
	 	By:  	/s/ Albert W. Knapp
	 	
                
                  

                

                
                  Name: 
                    Albert W. Knapp

                  Title:   
                    President and CEO

                

              
	 	 


      

      
        	 	 	 
	 	ETHANEX
                PHASE III,
                LLC
	 
 	 
 	 
 
	 	By:  	/s/ Albert W. Knapp
	 	
                
                  

                

                
                  Name: 
                    Albert W. Knapp

                  Title:   
                    President and CEO

                

              
	 	 


      

      
        	 	 	 
	 	ETHANEX
                SUTHERLAND
                LAND, LLC
	 
 	 
 	 
 
	 	By:  	/s/ Albert W. Knapp
	 	
                
                  

                

                
                  Name: 
                    Albert W. Knapp

                  Title:   
                    President and CEO

                

              
	 	 


      

      
        	 	 	 
	 	ETHANEX
                ENERGY,
                INC.
	 
 	 
 	 
 
	 	By:  	/s/ Albert W. Knapp
	 	
                

                
                  Name: 
                    Albert W. Knapp

                  Title:   
                    President and CEO