EXHIBIT 10.3.2


 


AMENDMENT NUMBER TWO


to


LETTER OF INTENT (“LOI”)


DATED AUGUST 24, 2006


And


AMENDMENT NUMBER ONE


DATED FEBRUARY 14, 2007 (“AMENDMENT NUMBER
ONE”)


by and between


FAGEN, INC. (“FAGEN”)


and


ILLINI BIO-ENERGY, LLC (“OWNER”)


 


This Amendment Number Two is entered
into this 13th day of June, 2007, by and between Fagen, Inc., a Minnesota
Corporation (“Fagen”) and Illini Bio-Energy, LLC, an Illinois Limited Liability
Company (“Owner”).


 


In consideration of the mutual promises, covenants, and conditions
contained in the LOI, Amendment Number One, and herein, and for other good
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto covenant and agree that this Amendment Number
Two shall amend the LOI and Amendment Number One and that the terms and
conditions of this Amendment Number Two shall supersede and replace the terms
of the LOI and Amendment Number One as follows:


 


The parties hereto agree as follows:


 


1.             Paragraph 2 of the
LOI shall be deleted in its entirety and replaced as follows.


 


2.             Contract Price. Subject
to the terms and conditions set forth herein, Owner shall pay Fagen One Hundred
Twenty Million Dollars ($120,000,000.00) (the “Contract Price”) as full
consideration to Fagen for full and complete performance of the services
described in the Design-Build Agreement and all costs incurred in connection
therewith. Such price shall be fixed until December 31, 2007.


 


(a)           The Contract Price
shall not include any costs related to union labor or prevailing wage
requirements. If any action by Owner, a change in Applicable Law, or a
Governmental Authority (as those terms are defined in the Design-Build
Agreement) acting pursuant to a change in Applicable Law, shall require Fagen
to employ union labor or compensate labor at prevailing wages, the Contract
Price shall be adjusted upwards to include any increased costs associated with
such labor or wages. Such adjustment shall include, but not be limited to,
increased labor, subcontractor, and material and equipment costs resulting from
any union or prevailing wage requirement; provided, however, that if an option
is made available to either employ union labor, or to compensate labor at
prevailing wages, such option shall be at Fagen’s sole discretion and that if
such option is executed by Owner without Fagen’s agreement, Fagen shall have
the right to


 


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terminate this Letter of Intent or the
Design-Build Agreement, as applicable, and receive compensation pursuant to
Paragraph 4(c) of the LOI or the terms of the Design-Build Agreement, whichever
is applicable.


 


(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 Fagen is greater than 7938.58 (June
2007), the Contract Price shall be adjusted to reflect such increase, but only in
the event that a valid Notice to Proceed is not accepted prior to January 1,
2008. If Fagen accepts a valid Notice to Proceed prior to January 1, 2008,
there shall be no CCI increase to the Contract Price.


 


(c)           In addition, commencing
on January 1, 2008, and the first of each calendar month thereafter, the Contract
Price shall be increased by 1% per calendar month until Notice to Proceed is
accepted.


 


(d)           If a valid Notice to
Proceed is not accepted by December 31, 2008, Fagen shall have the right, at
its sole discretion, to terminate this Letter of Intent or the Design-Build
Agreement, as applicable, and receive compensation pursuant to Paragraph 4(c) of
the LOI or the terms of the Design-Build Agreement, whichever is applicable.


 


2.             Paragraph 9 of the
LOI is amended and replaced as follows:


 


9.             Legal Effect. Although this Letter
of Intent does not contain all matters upon which agreement must be reached in
order for the Transaction to be consummated, Fagen and Owner wish to set forth,
prior to the execution of the Transaction Documents, their mutual agreement as
to the material terms and conditions of the Transaction. Each Party agrees to
negotiate in good faith towards entering into the written, definitive and
legally binding Transaction Documents containing, among other terms and
conditions, those terms and conditions set forth in this Letter of Intent
including, without limitation, those


 


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terms set forth in Paragraphs 2 and 3 hereof.
Notwithstanding the foregoing, the provisions of this Paragraph and of
Paragraphs 1, 2, 4, 6, 7, 8, 11, 12, 14, 17, and 18 hereof are agreed to be
legally binding obligations of the Parties upon the execution and acceptance of
this Letter of Intent.


 


The other provisions of the LOI shall remain unchanged and in full
force and effect.


 


IN WITNESS WHEREOF, the parties hereto have executed this Amendment
Number Two on the date set forth above.


 


	
  FAGEN, INC.

  	
   

  	
  ILLINI BIO-ENERGY, LLC

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By

  	
  Jennifer A.
  Johnson

  	
   

  	
  By

  	
  Ernest D.
  Moody

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title

  	
  CFO

  	
   

  	
  Title

  	
  Chairman

  	
   

  
								



 


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