Exhibit 10.17


 


SECOND AMENDMENT and EXTENSION


to


LETTER OF INTENT


DATED MARCH 1, 2007


by and between


FAGEN, INC.


and


AKRON RIVERVIEW CORN PROCESSORS, LLC


 


This
Second Amendment and Extension is
entered into this 9th day of November, 2007, 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 and an
Amendment to the Letter of Intent on May 10, 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 Second Amendment and
Extension shall prevail.


 


The
parties hereto agree as follows:


 


1.             The Letter of Intent shall be
extended to June 1, 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 June 1, 2008 (the “Closing
Date”) or this Letter of Intent will terminate by its terms in accordance with
Paragraph 11(a) hereof.”


 


2.             Paragraph 2 provides the Contract
Price.  The parties hereby agree that the
adjusted Contract Price as provided in Paragraph 2 shall not exceed the then
current Fagen contract price of a 100 million gallon plant on the date that the
Notice to Proceed is issued.  The
introductory paragraph in Paragraph 2 shall be stricken and replaced as
follows:


 


Contract Price.  Owner shall pay
Fagen One Hundred Thirty-Four Million Seventy-Four Thousand Fifty Dollars
($134,074,050) (the “Contract Price”) as full consideration to Fagen for
complete performance of the services described in the Design-Build Agreement
and all costs incurred in connection therewith. 
The Contract Price is based upon Fagen’s standard plant design and shall
be subject to adjustments to reflect any deviations from standard design
requested by Owner.  The Contract Price
shall be subject to the following adjustments, but in no event


 


 


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shall the total Contract Price plus adjustments, less Owner’s deviation
from standard design, be in excess of the stated current price which Fagen is
providing to customers to build a 100 million gallon facility on the date the
Notice to Proceed is issued:


 


3.             Paragraph 2(c) provides
a maximum total percentage adjustment of 6%. 
This maximum adjustment shall be removed; therefore Paragraph 2(c) shall
be stricken and replaced as follows:


 


2(c)                            Due to rapidly
accelerating costs of certain specialty materials required for Plant
Construction, in addition to any adjustment provided for in Paragraph 2(b) hereof,
Fagen 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 January 2007
and the month in which a valid Notice to Proceed is given to Fagen. By way of
example, if a valid Notice to Proceed is given ten (10) months after January 2007
and the CCI has increased two percent (2%) over such period of time, 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 ten (10) months
from January 2007 to the delivery of a valid Notice to Proceed in
accordance with this paragraph, for a total adjustment of seven percent (7%).


 


4.             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 June 1, 2008; 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,
provided that Fagen shall not be required to accept the Notice to Proceed prior
to June 1, 2008.   If Owner has not
fulfilled its requirements for the issuance of a Notice to Proceed as set forth
in this Paragraph 3(m) by the date referenced in item number 9 in this
Paragraph, Fagen may, at its sole option, terminate the Design-Build Agreement,
thus releasing Fagen of all obligations.


 


5.             Paragraph 11 shall
be stricken and replaced as follows to reflect the extension of the LOI to June 1,
2008:


 


Termination.  This Letter
of Intent will terminate on June 1, 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:


 


 


 


2

















 


 


(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 Second Amendment and
Extension on the date set forth above.


 


	
  FAGEN,
  INC.

  	
   

  	
  AKRON
  RIVERVIEW CORN

  
	
   

  	
   

  	
  PROCESSORS,
  LLC

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Ron Fagen

  	
   

  	
  By:

  	
  /s/ Stephen G. Roe

  
	
  Title

  	
  CEO & President

  	
   

  	
  Title

  	
   President

  
							



 


 


 


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