HOKUCHANGE ORDER 4.0

 

1.

The parties hereto hereby acknowledge that Owner has not fulfilled its payment obligations under the Contract, including those contemplated by Change Order No. 3, and that, as a result, Contractor has been prevented from performing its Contract Statement of Work and reaching applicable Completion Dates.  Additionally, Owner officially directed Contractor to substantially curtail the Work effective July 10, 2009, pursuant to Section 10.5 of the Contract.

 

2.

The parties hereto hereby acknowledge that Owner has an amount equal to $11,544,495.51 past due and owing to Contractor under the Contract, including $9,928,485.98 in outstanding invoices and $1,616,009.53 in retainage.

 

3.

The Project Schedule described in Exhibit B to the Contract (including the Schedule Incentive Completion Dates as amended and restated in Change Order No. 3) is hereby modified as follows to account for curtailment of the Work described in paragraph 1 above:

 

A.

The “Preliminary Reactor Installation” is scheduled for completion on or before December 24, 2009.

 

C.

“Full Commercial Operation” is scheduled to be accomplished on or before December 24, 2010.

 

D.

The foregoing Project Schedule dates are based on an assumed resumption of the Work commencing on October 1, 2009, and the funding and performance of the work contemplated in paragraph #5 below.  If resumption of Work is delayed past October 1, 2009 or if paragraph 4 and 6 obligations are delayed or unfulfilled by Owner, each such date set forth above shall be delayed day-for-day with such delay, provided however, that the day-for-day extension shall not apply to the above subsection (A) Preliminary Reactor Installation deadline unless the above stated obligations are not fulfilled by October 15, 2009.

 

4.

Contractor agrees to resume the Work within five (5) business days of receiving (a) written instructions from Owner to resume the Work; (b) full disclosure  to Contractor regarding Owner’s new funding sources and partner; and (c) payment from the Owner in the amount of not less than $5,000,000.  Payment of all Work upon resumption shall be in accordance with the terms of the existing Contract.

 

5.

Prior to the resumption of the Work, or termination of the Contract, Owner agrees to pay Contractor’s invoices as generated for payment for new expenses incurred, and to be incurred, and new Work performed, and to be performed, as specified in Exhibit A hereto.  Owner further acknowledges and agrees that in the event the Work is not resumed as contemplated in paragraphs 4 and 6 herein, Contractor will incur further demobilization expense, the costs of which will be borne by Owner and paid through the monthly payments provided for in this paragraph 5.

 

6.

Owner agrees to pay Contractor the sum of $6,544,495.51 on or before January 14, 2010. In consideration thereof, Contractor hereby agrees to forbear from foreclosing on its lien recorded on July 30, 2009 until January 15, 2010, with respect to all sums due and payable under the Contract, and to refrain from recording any new liens, and to waive any interest, recording and title fees, and legal expenses to which Contractor believes it may be entitled in connection with amounts past due under the Contract.  Such agreement, however, shall be revocable in the event Owner fails to make the payments and fulfill the commitments summarized in Section 4 above on or before December 1, 2009.