Exhibit 10.1
LETTER OF INTENT
HUSKER AG PROCESSING, LLC
510 LOCUST STREET
P.O. BOX 10
PLAINVIEW, NEBRASKA 68769
MAY 1, 2001
CONFIDENTIAL
Fagen, Inc.
P.O. Box 159
Granite Falls, Minnesota 56241
ICM, Inc.
310 North 1st Street
Colwich, Kansas 67030
Dear Sir or Madam:
This letter of intent will outline the general terms and conditions
pursuant to which Fagen, Inc. ("Fagen") and ICM, Inc. ("ICM") will design and
construct a twenty million gallon per year ethanol plant (the "Facility") for
Husker Ag Processing, LLC ("Owner") and supersedes all prior letters of intent
between the parties hereto. This proposal is subject to the terms and conditions
of this letter of intent:
1. DEFINITIVE AGREEMENT. This proposal is subject to the negotiation
and preparation of a definitive design-build agreement (the "Definitive
Agreement"), which would contain customary covenants, conditions,
representations, warranties and indemnities by the parties. The Definitive
Agreement will supersede this letter of intent, and contain among other things,
the terms and conditions set forth in Exhibit A attached hereto.
2. EXPENSES. Each party to this letter of intent shall bear its
respective costs and expenses in connection with the negotiation, preparation,
execution and performance of the documents and transactions contemplated in this
letter of intent, and shall have no liability to any other party for such
expense.
3. STANDBY COMMITMENT. Fagen agrees that once the Owner has raised $9
million after commencement of its public offering, at the request of Owner's
Board of Directors at anytime thereafter, Fagen will purchase $1,000,000 of
membership units, or such lesser amount requested by the Board of Directors,
upon the terms set forth in the Owner's prospectus.
4. EXCLUSIVITY. During the term of this letter of intent the Owner
agrees that Fagen and ICM will be the exclusive developer for the Owner in
connection with matters covered by the letter of intent.
5. ABSENCE OF ENFORCEABLE AGREEMENT. This letter of intent (except for
this Section and Sections 3 and 4, hereof, which shall remain in effect) will
expire without any action by either party hereto if a Definitive Agreement is
not executed by December 1, 2001. Except for the terms and provisions of this
Section and Sections 3 and 4 of this letter of intent, it is not an enforceable
agreement among us, but is merely a general statement of our present intent
which sets forth the general basis for the
negotiation and preparation of the Definitive Agreement. Each of the parties to
this letter of intent also agrees that unless and until the Definitive Agreement
has been executed and delivered by the parties hereto, no party hereto has any
legal obligation of any kind whatsoever with respect to the transactions
contemplated hereby by virtue of this letter of intent or by any other written
or oral expression with respect to such transactions except, in the case of this
letter of intent, the matters referred to in this Section and Sections 3 and 4
of this letter of intent. This Section cannot be waived except by written
instrument signed by the parties to this letter of intent which specifically
refers to this section and explicitly makes such waiver.
If you approve of this letter of intent, please so indicate by
executing and returning one copy hereof to the undersigned on or before May 1,
2001.
Yours very truly,
Husker Ag Processing, LLC.
By: /s/ Gary Kuester
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Gary Kuester, Chairman of the Board
By executing below, the undersigned accept the terms of this letter of
intent, subject to the conditions contained herein.
Fagen, Inc.
By: /s/ Roland "Ron" Fagen
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Its: Chief Executive Office
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ICM, Inc.
By: /s/ Jeff Roskam
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Its: Senior Vice President
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EXHIBIT A
Owner, and Fagen, Inc., and ICM, Inc. ("Fagen/ICM") agree to use best efforts in
jointly developing the project under the following terms:
1. Owner agrees that Fagen/ICM will design and build the Facility, if a)
determined by Owner to be feasible; b) suitable prices and contracts
are negotiated and signed; and c) adequate financing is obtained.
2. Fagen/ICM will provide Owner with assistance in evaluating, from both a
technical and business perspective
o Ownership organization options,
o The appropriate location of the proposed Facility, and
o Business Plan development
3. Fagen/ICM shall assist Owner in locating appropriate management for the
Facility.
4. Fagen/ICM will assist Owner in presenting information to potential
investors, potential leaders, and various entities or agencies that may
provide project development assistance.
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