AMENDMENT TO ENGINEERING, PROCUREMENT AND CONSTRUCTION SERVICES FIXED PRICE CONTRACT LOCATION: AURORA, NEBRASKA
Exhibit
10.5.1
AMENDMENT
TO
ENGINEERING,
PROCUREMENT AND
CONSTRUCTION
SERVICES
FIXED
PRICE CONTRACT
LOCATION:
AURORA, NEBRASKA
THIS AMENDMENT (“Amendment”)
is made and entered into effective as of October 1, 2008 by and between Aventine
Renewable Energy - Xxxxxx Xxxx, LLC (“Owner”) and Kiewit Energy Company
(“Kiewit”).
WITNESSETH
WHEREAS,
Owner and Kiewit are parties to that certain Engineering, Procurement and
Construction Services Fixed Price Contract dated May 31, 2007 (the “Contract”);
and
WHEREAS,
Owner and Kiewit desire to amend the Contract as set forth below.
NOW,
THEREFORE, in consideration of the premises and the mutual covenants herein
contained, Owner and Kiewit agree as follows;
1. Capitalized
terms not defined herein shall have the meaning set forth in the
Contract.
2. The
first sentence of Section 5.1 of the Contract is deleted in its entirety and the
following language is inserted in lieu thereof:
“Kiewit guarantees that Substantial
Completion of the Work will be achieved no later than June 30, 2009
(“Guaranteed Substantial Completion Date”).”
3. The
third sentence of Section 5.1 of the Contract is hereby amended by inserting the
following language after the phrase “provided, however,” on the last line of
page 12 of the Contract:
“such
Base LDs shall not commence with until the 31st Day
after the Guaranteed Substantial Completion Date (i.e. Day 1 under item (i)
above shall be such 31st Day
after the Guaranteed Substantial Completion Date) and provided further, however,
.. . .”
4. Section
5.3 Early Completion Bonus
of the Contract is deleted in its entirety and there shall be no early
completion bonus under the Contract.
5. For
all Work performed under the Contract prior to September 22, 2008 (i.e. for Work
covered by invoices through and including Monthly Progress Invoice No. 18),
Owner will make monthly progress payments in accordance with Section
8.3. For all Work performed under the Contract from and after
September 22, 2008, notwithstanding any language of the second, third and fourth
sentences of Section 8.3 to the contrary, Owner shall pay for such Work in nine
(9) equal monthly installments. Such nine (9) equal monthly
installments shall be determined as
follows:
(i) first, an amount equal to the initial Contract Sum of Two Hundred Thirty
Million Seventeen Thousand Four Hundred Sixteen and no/100 Dollars
($230,017,416) shall be adjusted (up or down) for any agreed upon changes to the
Contract Sum as a result of any agreed upon Change Orders, and for any
adjustments to the Contract Sum under the fourth sentence of Section 8.1 for
Work performed prior to September 22, 2008, (ii) second, all progress payments
paid by Owner for Work performed under the Contract prior to September 22, 2008
(excluding any Excluded Taxes included in such progress payments) shall be
subtracted from the amount determined under item (i) above; for the avoidance of
doubt, all amounts paid by Owner or its affiliates under the AWA and the Pre-EPC
Agreement shall be considered as progress payments paid by Owner, (iii) third,
the amount determined under item (ii) above shall be increased by any Excluded
Taxes which Owner and Kiewit estimate, as of October 1, 2008, will be owed by
Owner under Section 8.1 for Work performed from and after September 22, 2008,
(iv) fourth, the amount determined under item (iii) above shall be adjusted up
or down for any adjustments to the Contract Sum under the fourth sentence of
Section 8.1 which Kiewit and Owner estimate, as of October 1, 2008, will occur
for Work to be performed from and after September 22, 2008, and (v) fifth, the
amount determined under item (iv) shall be the amount to be paid by Owner in
nine (9) equal monthly installments (each installment being the amount
determined under item (iv) divided by nine (9)) commencing with Work performed
under the Contract from and after September 22, 2008, for which the first of
such nine (9) installments will be paid by Owner in November 2008 and the last
of such nine (9) installments will be paid by Owner in July 2009, subject to the
payment process hereafter set forth in this Section 8.3. However, the
last of these nine (9) monthly installment payments shall be subject to
adjustment to reflect any difference, up or down, between the total amount owed
by Owner under this Contract for the Work and the total amount paid by Owner
under this Contract for the Work (including payment of such ninth (9th)
monthly installment before any such adjustment and including credits for all
amounts paid by Owner or its affiliates under the AWA and the Pre-EPC
Agreement).”
6. The
Applications for Payment and supporting documentation to be submitted by Kiewit
to Owner under Section 8.3 of the Contract pertaining to the nine (9)
installment payments which are described in paragraph 5. of this Amendment shall
contain the same information as Applications for Payment and supporting
documentation previously submitted by Kiewit as well as the calculation of the
installment payments with reasonable supporting documentation; provided,
however, each Monthly Progress Invoice shall also include line items identifying
the difference (both for the current period and on a cumulative basis) between
what the progress payment(s) would have been had Section 8.3 of the Contract not
been amended as set forth in paragraph 5. of this Amendment and the installment
payment(s) determined under Section 8.3 of the Contract as amended under
paragraph 5. of this Amendment.
7. The
corn grind date in order, in part, for Plant Startup to occur under the Contract
is targeted to occur on May 30, 2009.
8. Except
as set forth above, all terms of the Contract shall remain in full force and
effect.
9. This
Amendment may be executed by Kiewit and Owner in any number of counterparts,
each of which shall be deemed an original instrument, but all of which together
shall constitute one and the same instrument. Execution may be
evidenced by facsimile
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signatures
with original signature pages to follow in due course.
IN
WITNESS WHEREOF, the Parties have caused this Amendment to be executed effective
as of October 1, 2008.
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AVENTINE
RENEWABLE ENERGY -
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KIEWIT
ENERGY COMPANY
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XXXXXX
XXXX, LLC
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By:
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/s/
Xxxxxx X. Xxxxxxx, Xx.
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By:
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/s/
Xxxx Xxxxxxx
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Name:
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Xxxxxx
X. Xxxxxxx, Xx.
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Name:
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Xxxx
Xxxxxxx
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Title:
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Chief
Operating Officer
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Title:
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President
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