FIRST AMENDMENT TO THE ASSET PURCHASE AGREEMENT
K&E
Draft 3/10/08
FIRST
AMENDMENT TO THE
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 Xxxxxxxxxx Land, LLC, a Delaware limited liability company that is
wholly owned by Ethanex Xxxxxxxxxx (“RE
LLC”),
Ethanex Xxxxxxxxxx, LLC, a Delaware limited liability company that is wholly
owned by Ethanex (“Ethanex
Xxxxxxxxxx”),
Ethanex Phase I, LLC, a Delaware limited liability company that is wholly
owned
by Ethanex Xxxxxxxxxx (“Phase
I Buyer”),
Ethanex Phase II, LLC, a Delaware limited liability company that is wholly
owned
by Ethanex Xxxxxxxxxx (“Phase
II Buyer”),
and
Ethanex Phase III, LLC, a Delaware limited liability company that is wholly
owned by Ethanex Xxxxxxxxxx (“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 Xxxxxxxxxx and the Buyer Group are parties to
the
Agreement; and,
WHEREAS,
each of the Seller, Ethanex, Ethanex Xxxxxxxxxx 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/ Xxxxx X. Xxxxxxxx | |
|
Name: Xxxxx
X. Xxxxxxxx
Title:
Chairman of the Board
|
||
| ETHANEX XXXXXXXXXX, LLC | ||
| |
|
|
| By: | /s/ Xxxxxx X. Xxxxx | |
|
Name: Xxxxxx X. Xxxxx Title: President
and CEO
|
||
| ETHANEX PHASE I, LLC | ||
| |
|
|
| By: | /s/ Xxxxxx X. Xxxxx | |
|
Name:
Xxxxxx X. Xxxxx
Title:
President and CEO
|
||
| ETHANEX PHASE II, LLC | ||
| |
|
|
| By: | /s/ Xxxxxx X. Xxxxx | |
|
Name:
Xxxxxx X. Xxxxx
Title:
President and CEO
|
||
| ETHANEX PHASE III, LLC | ||
| |
|
|
| By: | /s/ Xxxxxx X. Xxxxx | |
|
Name:
Xxxxxx X. Xxxxx
Title:
President and CEO
|
||
| ETHANEX XXXXXXXXXX LAND, LLC | ||
| |
|
|
| By: | /s/ Xxxxxx X. Xxxxx | |
|
Name:
Xxxxxx X. Xxxxx
Title:
President and CEO
|
||
| ETHANEX ENERGY, INC. | ||
| |
|
|
| By: | /s/ Xxxxxx X. Xxxxx | |
|
Name:
Xxxxxx X. Xxxxx
Title:
President and CEO
|
||
