NEDAK Ethanol EPC Contract
Atkinson, NE
AMENDMENT NO. 3 TO
ENGINEERING, PROCUREMENT AND CONSTRUCTION
SERVICES CONTRACT
DELTA-T CORPORATION, a Virginia corporation ("Delta-T"), and NEDAK Ethanol LLC,
a Nebraska limited liability company ("Owner" or "NEDAK"), agree to amend the
Engineering, Procurement and Construction Services Fixed Price Contract, dated
August 9, 2006 ("EPC Contract").
BACKGROUND
The Parties desire to amend the EPC Contract by modifying the completion
dates, providing for liquidated damages for delayed performance, establishing a
revised Contract Sum, and modifying the payment terms.
AMENDMENT
The parties agree to amend the EPC Contract as set forth below:
1. Contract Sum: The Contract Sum shall be increased in the amount of
$5,000,000, payable as follows:
a. $2,000,000 due upon Performance Test Acceptance of the Project in
accordance with the EPC Contract;
b. $3,000,000 due six months after Performance Test Acceptance. NEDAK shall
execute a promissory, in the form attached as Exhibit A to this Amendment,
in the amount of $5,000,000.
2. Stainless Steel Surcharge: Paragraph 8.1 of the EPC Contract shall be amended
to provide that the stainless steel surcharge in the amount of $6,648,320 (as
established by Change Order No. 5) shall be included in its entirety within the
$17 million payment to be made upon signing of this Amendment.
3. Completion Dates: Notwithstanding any provision of the EPC Contract to the
contrary, the Parties establish the following completion dates and Delta-T
guarantees, subject to extensions permitted by the EPC Contract, that the
Project shall be completed in accordance with the following dates:
Mechanical Completion Date: July 15, 2008
Performance Testing Completed
And Name Plate Production Reached: sixty (60) days after Mechanical
Completion
4. Liquidated Damages:
Mechanical Completion: Delta-T understands that if Mechanical Completion is
not attained by the scheduled Mechanical Completion Date, NEDAK will suffer
damages which are difficult to determine and accurately specify. Delta-T agrees
that if Mechanical Completion is not attained on or before July 15, 2008,
Delta-T will pay to NEDAK or have deducted from the Contract Sum, as liquidated
damages and not as a penalty, the amount of $ 150,000 for each full week after
July 15, 2008 the Project is not mechanically complete for a period of four full
weeks, after which the liquidated damages shall increase to $200,000 for each
full week.
Performance Testing/Name Plate Production: Delta-T understands that if the
performance testing and name plate production is not attained by the agreed upon
performance testing and name plate production date, NEDAK will suffer damages
which are difficult to determine and accurately specify. Delta-T agrees that if
the performance testing and name plate production is not attained within sixty
(60) days after Mechanical Completion, Delta-T agrees to pay NEDAK or have
deducted from the Contract Sum, as liquidated damages and not as a penalty, an
amount determined as follows:
The difference between the weekly name plate production in gallons and
actual production in gallons multiplied by $.30 per gallon for each full
week the plant does not attain the performance testing and name plate
production.
5. Xxxxxxx Xxxxxx Guarantee: Xxxxxxx Xxxxxx NV ("Xxxxxxx") shall guarantee Delta
T's performance of the EPC Contract. The form of Guarantee is attached as
Exhibit B to this Amendment. Xxxxxxx agrees to the assignment of the Guarantee
and letters of credit (and/or its proceeds as determined by Xxxxxx) issued to
NEDAK, from NEDAK to Lender.
6. Existing Letters of Credit and New Letters of Credit: The existing letters of
credit valid through October 1, 2008 in the amount of $5,000,000 from Bank of
America and $500,000 from the Bank of Virginia shall be extended until January
31, 2009 and may be replaced by a single letter of credit from a bank acceptable
to NEDAK. Both of the aforementioned Bank of America and Bank of Virginia
letters of credit may be replaced with one letter of credit in the amount of
$5.5 million with an expiration date of January 31, 2009, from an approved Bank
at anytime by Delta-T. Immediately upon the issuance of the replacement letter
of credit, NEDAK shall release the Bank of America and Bank of Virginia letters
of credit back to Delta-T. An irrevocable Letter of Credit from Delta-T and/or
Xxxxxxx in the amount of $8,000,000 from Bank Hapaolim New York shall be issued
with a December 31, 2008 expiration date which shall be confirmed by a U.S.
bank.
7. Delta-T's Representative: In accordance with Paragraph 11.1 of the EPC
Contract, Delta-T shall appoint Xxx Xxxxxx as Delta-T's Project Manager and Xx
Xxxxxx as Delta-T's Site Manager. Mr. Xxxxxx and Xx. Xxxxxx shall work full time
on this Project and shall not be replaced by Delta-T (so long as they work for
Delta-T) until the Project has passed the performance testing and reached name
plate production.
8. Open Books. NEDAK shall be permitted full access to the accounting and
project books and records of Delta T relating to the NEDAK project at reasonable
business hours.
Except as specifically amended, each and every other term and condition of the
EPC Contract shall remain unchanged and in full force and effect without
modification and shall govern and control the Work provided pursuant to this and
any prior Amendments. In the event of any conflict, inconsistency or ambiguity
between the terms and provisions of this Amendment or the terms and conditions
of the EPC Contract, this Amendment shall govern and control.
9. Invoices. Upon (a) release of the P2S lien, (b) signing of this Amendment by
the parties, (c) issuance of the letters of credit in Section 6 above and (d)
the execution and delivery of the attached guaranty by Xxxxxxx, XXXXX agrees to
pay within three (3) business days thereafter, the amount of $17,000,000. In
addition, Delta-T shall submit a normal draw in accordance with the EPC contract
thereafter. Delta T shall also supply Land America, the title company, any and
all documentation requested thereby, as is necessary to satisfy Lender that
Delta T has timely paid all subcontractors on the project.
10. Project Retainage. Project retainage shall be released and paid to Delta- T
upon Mechanical Completion in accordance with the terms of the EPC Contract.
This Amendment No. 3 is dated as of April__, 2008.
NEDAK Ethanol, LLC
By: /s/ Xxxxxx Xxxxxxxxx
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Name: Xxxxxx Xxxxxxxxx
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Title: Pres. & Gen. Mngr
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Date:
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DELTA-T CORPORATION
By: /s/ Xxxxxx X. Xxxx
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Name: Xxxxxx X. Xxxx
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Title: President & CEO
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Date: 4-9-08
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