Exhibit 10.20.4
AGREEMENT
BETWEEN
O'BRIEN ENERGY SYSTEMS, INC.
AND
E. I. DU PONT DE NEMOURS AND COMPANY
AMENDMENT NO. 3 TO STEAM PURCHASE CONTRACT
O'Brien Energy Systems, Inc. ("O'Brien") and E. I. du
Pont de Nemours and Company ("DuPont") entered into a Steam
Purchase Contract dated December 8, 1986, as amended by
Amendment No. 1 to Steam Purchase Contract dated January 12,
1988, and by a letter agreement dated July 25, 1988 (Amendment
2), pursuant to which O'Brien has agreed to supply steam to
DuPont's Xxxxxx, New Jersey plant, from a cogeneration facility
which O'Brien will build on land leased from Du Pont. Du Pont
and O'Brien now desire to amend further that Contract.
Therefore, in consideration of the mutual covenants contained
herein, the sufficiency of which is acknowledged by both parties,
DuPont and O'Brien hereby agree that the Steam Purchase Contract
of December 8, 1986, as previously amended, is further amended as
follows:
1. The sentence in Article 4(A) beginning "O'Brien
represents that." is modified to read as follows:
O'Brien represents that the Initial Delivery Date
shall be on or before August 31, 1990, provided that
the Initial Delivery Date shall be extended by the
occurrence and continuation of an event of Force
Majeure as defined in Article 7 below.
2. The sentence in Article 4(A) beginning "In lieu of
accepting these." is modified to read as follows:
In lieu of accepting these liquidated damages, or
in the event that O'Brien should fail to pay them,
DuPont shall have the right topursue all available
remedies at law or in equity, provided, however, that
in the event construction of the Facility has begun
prior to August 31, 1989 and O'Brien can demonstrate a
program of continuous construction that is at least 75
percent complete by August 31, 1990, unless excused by
Force Majeure, DuPont agrees not to exercise any remedy
which could result in termination of this Agreement
prior to February 1, 1992.
3. Four new Sections are added to Article 9. The
current paragraph in Article 9 beginning "DuPont will supply
1,000 gallons." shall be designated Section A and three new
Sections to be added shall be designated Sections B, C, D and E.
They shall read as follows:
B. Du Pont agrees, subject to DuPont's
determination that it has available adequate capacity
to do so, to permit O'Brien to interconnect the
Facilitie's waste water disposal system with DuPont's
existing sanitary sewer system. The discharges from
the Facility are estimated to be an average flow of 120
gallons per minute. O'Brien agrees to construct the
necessary interconnection and shall install monitoring
as required by the Middlesex County Utilities
Authority. O'Brien further agrees to indemnify DuPot
in accordance with Article 16 of this Agreement should
such indemnity be required in connection with waste
generated by O'Brien into the sanitary sewer system.
If O'Brien connects to DuPont's sanitary sewer system,
it agrees to pay its proportionate share of any
maintenance costs or costs related to blockage repair
on that portion of the sewer sanitary system being
utilized by O'Brien, such costs to be computed by
determining the pro-rata usage by DuPont and O'Brien
for that shared portion.
C. Du Pont agrees to permit O'Brien to provide a
storm water detention basin and connect into the
existing plant storm sewer piping system, so that rain
water maybe discharged from the site.
D. Du Pont agrees to provide temporary parking
and access to the O'Brien site during construction and
operation of the Facility until such time as a proposed
traffic light at the intersection of Washington Road,
Lakeview Drive, and the O'Brien entrance is
operational.
X. XxXxxx agrees, subject to Du Pont's
determination that it has available adequate capacity
to do so, to permit O'Brien, at O'Brien's option, to
provide a new supply line from the fire pump house to
the Facility and to connect the Facility with DuPont's
fire protection water supply system for the purpose of
designing and developing a fire protection system for
the Facility. If O'Brien exercises this option,
O'Brien will be responsible
2
at it expense for maintaining, repairing and, if
necessary, upgrading that portion of the fire
protection water supply system beginning at the
existing DuPont fire pump station (including the fire
lake reservoir) and ending at the Facility. DuPont
shall have the right to do this work itself, but at
O'Brien's expense. DuPont agrees not to repair or
alter its fire protection water supply system in a
manner which would deprive O'Brien of a sufficient
water supply for its fire protection system without the
consent of O'Brien. O'Brien further agrees to
indemnify DuPont in accordance with Article 16 of this
Agreement should such indemnity be required in
connection with a failure of DuPont's fire protection
water supply system to put out a fire at the Facility.
If O'Brien connects the Facility to DuPont's fire
protection water supply system, it agrees to pay its
proportionate share of any repair costs due to a
failure of the fire protection water supply system on
that portion of the fire protection water supply system
being utilized by O'Brien, such costs to be computed on
a pro-rata basis with reference to the percentage of
square footage comprising buildings at O'Brien's
Facility as compared to square footage comprising
buildings owned or occupied by duPont at the Xxxxxx
site. O'Brien further agrees to design the Facility
fire protection system via a fire "loop" which will tie
into the DuPont fire protection water supply system at
both connection points at the outer boundaries of the
leased premises and which will eliminate the existing
DuPont fire protection water supply system piping on
the leased premises.
4. The sentence in Article 12(D) beginning "If DuPont
elects to close down." is modified to read as follows:
If DuPont elects to close down or abandon the
Xxxxxx operations or site, its obligations under this
Agreement shall terminate except for (1) the lease of
the Facility site and the adjoining land described in
the Ground Lease to O'Brien, (2) the provision of
continued access to the Facility Site and adjoining
plot, (3) provision of the water supply pursuant to
this agreement assuming that DuPont is still operating
its water treatment plant, (4) the allocation of
responsibility for environmental contamination set
forth in Article 8(D) of this Agreement, and (5) the
provisions
3
regarding the rebuilding of the Facility set forth in
Article 17(B) of this Agreement.
5. A new Section is added to Article 17. The current
paragraph in Article 17 beginning "At all times during." shall be
designated Section A and the new Section shall be designated
Section B. Section B to Article 17 shall read as follows:
B. Notwithstanding anything contained in this
Agreement or in Section 17 of the Ground Lease between
O'Brien and DuPont, dated January 2, 1987, in the event
that any part of the Facility shall be destroyed or
damaged in whole or in part by fire or other cause
covered within the extended coverage of the fire
insurance policies carried by O'Brien, O'Brien may, but
shall not be required to repair, replace or rebuild any
such portion of the Facility except as is hereinafter
provided. If the back-up boiler and all necessary
auxiliaries or both heat recovery boilers or any such
greater part of the Facility including, either or both
of the back-up boiler and all necessary auxiliaries and
both heat recovery boilers, shall be destroyed or
damaged in whole or in part by fire or other causes
within the extended coverage of the fire insurance
policies carried by O'Brien, in such event, if DuPont
continues to require steam in accordance with the terms
of this Agreement, O'Brien agrees to dedicate such
portion of the insurance proceeds paid under applicable
policies as may be necessary to repair or replace or
rebuild the back-up boiler, one of the heat recovery
boilers and the electrical interconnection facilities
necessary to supply electricity to DuPont.
In addition, in the event that the Facility is not
replaced following destruction thereof by fire or other
cause covered within the extended coverage of the fire
insurance policy carried by O'Brien, insurance proceeds
sufficient to pay for the cost of demolition, removal
of equipment from site (excluding foundation) and
restoration to a safe condition will be dedicated by
O'Brien for such purposes.
* * * *
4
As amended by this Amendment 3, the Steam Purchase Contract as
earlier amended, remains in full force and effect.
O'BRIEN ENERGY SYSTEMS, INC.
BY: /s/ Xxxxxxx Xxxxxx
Title: Senior V.P. Secretary & General Counsel
Date: 12/14/88
E. I. DU PONT DE NEMOURS AND COMPANY
BY: /s/ Xxxxxx X. Xxxxxx
Title: Sr. Purchasing Agent
Date: 12/12/88
5
