**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** isentered into this 9th day of November, 2007, by and between Fagen, Inc., aMinnesota Corporation (“Fagen”) and Akron Riverview Corn Processors, LLC, anIowa Limited Liability Company (“Owner”).

 

Theparties entered into a Letter of Intent dated March 1, 2007 and anAmendment 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 setforth below.

 

Notwithstandinganything to the contrary contained in the LOI between the parties hereto, andin consideration of the mutual promises, covenants, and conditions contained inthe LOI and contained herein, and for other good valuable consideration, thereceipt and sufficiency of which are hereby acknowledged, the parties heretocovenant and agree that the terms and conditions of this Second Amendment andExtension shall prevail.

 

Theparties hereto agree as follows:

 

1.             The Letter of Intent shall beextended to June 1, 2008.  Thesecond sentence in the second paragraph of page 1 shall be stricken andreplaced to reflect this extension as follows:

 

“The Parties agree that Transaction Documents must be executed anddelivered by the parties thereto no later than June 1, 2008 (the “ClosingDate”) or this Letter of Intent will terminate by its terms in accordance withParagraph 11(a) hereof.”

 

2.             Paragraph 2 provides the ContractPrice.  The parties hereby agree that theadjusted Contract Price as provided in Paragraph 2 shall not exceed the thencurrent Fagen contract price of a 100 million gallon plant on the date that theNotice to Proceed is issued.  Theintroductory paragraph in Paragraph 2 shall be stricken and replaced asfollows:

 

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

 

 

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

 

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

 

2(c)                            Due to rapidlyaccelerating costs of certain specialty materials required for PlantConstruction, 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 onepercent (0.50%) for each calendar month that has passed between January 2007and the month in which a valid Notice to Proceed is given to Fagen. By way ofexample, if a valid Notice to Proceed is given ten (10) months after January 2007and the CCI has increased two percent (2%) over such period of time, the totaladjustment to the Contract Price shall be two percent (2%) in accordance withParagraph 2(b) plus one half of one percent (0.50%) for each of the ten (10) monthsfrom January 2007 to the delivery of a valid Notice to Proceed inaccordance with this paragraph, for a total adjustment of seven percent (7%).

 

4.             Paragraph 3(m)(9) of the LOIprovides the date upon which Owner must fulfill the requirements for theissuance of the Notice to Proceed.  Theparties agree that this date shall be extended to June 1, 2008; thereforeParagraph 3(m)(9) shall be stricken and replaced as follows:

 

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

 

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

 

**Termination.**  This Letterof Intent will terminate on June 1, 2008 unless the basic size and designof the Plant have been determined and mutually agreed upon, a specific site orsites have been determined and mutually agreed upon, and at least 10% of thenecessary equity has been raised.  Thisdate may be extended upon mutual written agreement of the Parties.  Furthermore, unless otherwise agreed to bythe Parties, this Letter of Intent will terminate:

 

 

 

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(a)                                  at the optionof either Fagen or Owner if the Design-Build Agreement is not completed andexecuted by the Closing Date; or

 

(b)                                 upon theexecution and delivery of the Transaction Documents.

 

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

 

INWITNESS WHEREOF, the parties hereto have executed this Second Amendment andExtension 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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