AMENDMENT NUMBER THREE to AMENDED LETTER OF INTENT by and between FAGEN, INC. and MINNERGY, LLC
Exhibit 10.3
This Amendment Number Three (“Amendment Number Three”) is entered into this 18th day of
June 2008, by and between Xxxxx, Inc., a Minnesota Corporation (“Xxxxx”) and MinnErgy, LLC,
a Minnesota Limited Liability Company (“Owner”). (Each of Xxxxx and Owner a “Party” and,
collectively, the “Parties”).
In consideration of the mutual promises, covenants and conditions contained in the Letter of Intent
by and between the Parties dated March 23, 2007 (“LOI”), Amendment Number One to the LOI
dated September 13, 2007 (“Amendment Number One”), Amendment Number Two to the LOI dated
December 17, 2007 (“Amendment Number Two”), and herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto
covenant and agree that this Amendment Number Three shall amend the LOI, Amendment Number One, and
Amendment Number Two, and that the terms and conditions of this Amendment Number Three shall
supersede and replace the terms of the LOI, Amendment Number One, and Amendment Number Two as
follows:
1. The second paragraph of the LOI, as amended by Amendment Number Two, shall be deleted in its
entirety and replaced with the following:
The Parties agree to effect the Transaction subject only to the execution and delivery
(in each case in a form satisfactory to Xxxxx) of a definitive Design-Build Agreement and
other ancillary instruments and agreements (the “Transaction Documents”). The
Parties agree that the Transaction Documents must be executed and delivered by the parties
thereto no later than June 21, 2009 (the “Closing Date”); or this Letter of Intent
will terminate in accordance with Paragraph 11(a).
2. Paragraph 2(b) of the LOI, as amended by Amendment Number Two, shall be deleted in its entirety
and replaced with the following:
| (b) | If the Construction Cost Index published by Engineering News-Record Magazine
(“CCI”) for the month in which a Notice to Proceed is given to Xxxxx is greater
than 7879.54 (February 2007), the Contract Price shall be increased by a percentage
amount equal to the percentage increase in CCI. |
3. Paragraph 2(c) of the LOI, as amended by Amendment Number Two, shall be deleted in its entirety
and replaced with the following:
| (c) | In addition to any adjustment provided for in Paragraph 2(b) hereof, Xxxxx
shall also add a surcharge to the Contract Price of one half of one percent (0.50%) for
each calendar month that has passed between June 2008 and the month in which a valid
Notice to Proceed is given to Xxxxx. By way of example, if a valid Notice to
Proceed is given six months after June 2008 and the CCI has increased by such date
two percent (2%) over the base CCI set forth in Paragraph 2(b), the total adjustment
to the Contract Price shall be two percent (2%) in accordance with Paragraph 2(b)
plus one half of one percent (0.50%) for each of the six months from June 2008 to
the delivery of a valid Notice to Proceed in accordance with this paragraph, for a
total adjustment of five percent (5%). In addition to the preceding example, if a
valid Notice to proceed is given one year after June 2008 and the CCI has increased
by such date two percent (2%) over the base CCI set forth in Paragraph 2(b), the
total adjustment to the Contract Price shall be two percent (2%) in accordance with
Paragraph 2(b) plus one half of one percent (0.50%) for each month from June 2008 to
the delivery of a valid Notice to Proceed in accordance with this paragraph, for a
total adjustment of eight percent (8%). |
4. The following Paragraph 2(d) shall be added to the LOI:
| (d) | The Contract Price, as adjusted in accordance with Paragraphs 2(b) and 2(c)
hereof, but excluding any other adjustments available to the Parties pursuant to the
Design-Build Agreement, shall not exceed Eighty-Eight Million Three Hundred Thousand
Dollars ($88,300,000.00). |
5. Item 9 and the last sentence of Paragraph 3(m) of the LOI, as amended by Amendment Number One,
shall be deleted in their entirety and replaced with the following:
(9) Xxxxx has provided Owner written notification of its acceptance of the Notice to
Proceed. If Owner has not fulfilled the requirements for the issuance of a Notice to
Proceed as set forth in this Paragraph 3(m) by June 21, 2009, Xxxxx may, at its sole option,
terminate the Design-Build Agreement, thus releasing Xxxxx of all obligations.
4. Paragraph 11 of the LOI, as amended by Amendment Number Two, shall be deleted in its entirety
and replaced with the following:
| 11. | Termination. This Letter of Intent will terminate on June 21, 2009 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 Xxxxx 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. |
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Except as specifically modified herein, all other provisions of the LOI, as amended by Amendment
Number One and Amendment Number Two, shall remain unchanged and in full force and effect.
IN WITNESS WHEREOF, the Parties hereto have caused their names to be hereunto subscribed by
their officers thereunto duly authorized, intending thereby that this Amendment Number Three shall
be effective as of the date first written hereinabove.
OWNER:
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XXXXX: | |||||
MinnErgy, LLC
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Xxxxx, Inc. | |||||
/s/ Xxxxxx X. Xxxxxxxxxx
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/s/ Xxx Xxxxx | |||||
Xxxxxx X. Xxxxxxxxxx
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Xxxxxx “Xxx” Xxxxx | |||||
President
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CEO and President | |||||
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