Attached files
| file | filename |
|---|---|
| 10-Q - Hoku Corp | v164866_10q.htm |
| EX-32.1 - Hoku Corp | v164866_ex32-1.htm |
| EX-32.2 - Hoku Corp | v164866_ex32-2.htm |
| EX-31.1 - Hoku Corp | v164866_ex31-1.htm |
| EX-31.2 - Hoku Corp | v164866_ex31-2.htm |
[*] =
CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS,
HAS BEEN OMITTED FROM PUBLIC FILING PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT SUBMITTED TO THE U.S. SECURITIES AND EXCHANGE COMMISSION. THE OMITTED
INFORMATION, WHICH HAS BEEN IDENTIFIED WITH THE SYMBOL “[*],” HAS BEEN FILED
SEPARATELY WITH THE U.S. SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE
24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
Exhibit
10.109
HOKU
CHANGE ORDER 4.0
September
18, 2009
JH KELLY
LLC
831
3rd
Avenue
Longview,
WA 98632
Attn: Mason
Evans, President
Dear
Mason:
Pursuant
to Article 8.1 of the Cost Plus Incentive Construction Contract dated August 8,
2007, by and between Hoku Materials, Inc. (“Owner”) and JH Kelly
LLC (“Contractor”), as
modified by Change Order No. 1 dated October 3, 2007 (“Change Order No. 1”),
Change Order No. 2 dated April 7, 2008 (“Change Order No. 2”) and Change Order
No. 3 dated March 27, 2009 (“Change Order No. 3”,
and collectively with Change Order No. 1, Change Order No. 2 and the Cost Plus
Incentive Contract, the “Contract”) Owner and
Contractor hereby agree to the following Change (as defined in the
Contract). Capitalized terms not otherwise defined in this Change are
defined in the Contract.
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1.
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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.
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2.
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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.
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3.
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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:
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A.
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The
“Preliminary Reactor Installation” is scheduled for completion on or
before December 24, 2009.
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B.
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The
“Partial Commercial Operation” is scheduled to be accomplished on or
before March 25, 2010.
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C.
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“Full
Commercial Operation” is scheduled to be accomplished on or before
December 24, 2010.
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D.
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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.
|
One Hoku Way · Pocatello, Idaho 83204 ·
Tel 808-682-7800 · Fax 808-440-0357 · www.hokumaterials.com SaltLake-500175.1
0038360-00002
 |
Mason
Evans
JH
Kelly LLC
September
18, 2009
Page
2 of 3
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4.
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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.
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5.
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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.
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6.
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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.
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Except
for the Modifications specifically set forth above, this Change order No. 4 does
not amend the Contract, and all such terms and conditions shall remain in full
force and effect. Please sign below to acknowledge your agreement
with this Change.
Sincerely
yours,
HOKU
MATERIALS, INC.
/s/ Scott
B. Paul
Scott B.
Paul, COO
Acknowledged
and agreed as of this 18th day of September, 2009.
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JH
KELLY LLC
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By:
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/s/ Mark Fleischauer
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Name:
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Mark Fleischauer
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Title:
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Vice
President
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Cc: Mark
Fleischauer, JH Kelly
LLC, 2311 East First Street, Vancouver, WA 98661
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Mason
Evans
JH
Kelly LLC
September
18, 2009
Page 3
of 3
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Exhibit
A
[*]