EXHIBIT 10.54
FIRST AMENDMENT
TO
COGENERATION ENERGY SUPPLY AGREEMENT
WHEREAS, PANDA ENERGY CORPORATION ("SUPPLIER"
hereinafter), a Texas Corporation, and THE XXXX
COMPANY ("PURCHASER" hereinafter), a Georgia
Corporation, entered a Cogeneration Energy Supply
Agreement (the "AGREEMENT" hereinafter) effective on
or about January 12, 1989, wherein SUPPLIER agreed
to construct and operate a cogeneration facility
(the "FACILITY" hereinafter) in Roanoke Rapids,
North Carolina and wherein PURCHASER agreed to
purchase steam and chilled water produced in the
FACILITY; and
WHEREAS, SUPPLIER and PURCHASER executed a
Consent and Agreement on May 19, 1989 wherein
PURCHASER consented to the assignment by SUPPLIER to
PANDA-XXXXXXXX CORPORATION of all of its right,
title and interest in the AGREEMENT, subject to the
express provision that such assignment would not
release SUPPLIER from any of its obligations to
PURCHASER pursuant to the AGREEMENT; and
WHEREAS, SUPPLIER and PANDA-XXXXXXXX
CORPORATION executed an Assignment And Assumption
Agreement effective on May 15, 1989 wherein SUPPLIER
assigned to PANDA-XXXXXXXX CORPORATION all of its
right, title and interest in the AGREEMENT; and
WHEREAS, PURCHASER, SUPPLIER and PANDA-XXXXXXXX
CORPORATION desire to amend the AGREEMENT.
NOW THEREFORE, in consideration of the
foregoing and of the premises hereinafter contained,
the parties hereto agree as follows:
1. The following new Section 2.02(c) is added to the
AGREEMENT:
(c) In designing the FACILITY to meet the
requirements set forth in Section 2.02(a)
above, SUPPLIER has relied on PURCHASER's
estimation that the plant should normally use
between thirty thousand (30,000) and one
hundred thousand (100,000) pounds of steam per
hour for process and to produce chilled water.
PURCHASER will use its best efforts to notify
SUPPLIER when and if PURCHASER determines that
there will be a prolonged material reduction in
such minimum usage levels. Nothing contained
herein shall modify the provisions of Section
3.01 that PURCHASER has made no warranty that
it will use any particular quantity of steam or
of chilled water.
2. Section 2.01(C) of the AGREEMENT is changed to
read as follows:
(c) Such chilled water delivery pipes as shall be
required to deliver chilled water to and from
PURCHASER's Xx. 0, Xx. 0 and No. 3 Xxxxx within
PURCHASER's Xxxxxxxx Complex.
3. Section 2.06(b) of the AGREEMENT is changed to
read as follows:
(b) Up to two thousand (2,000) tons of chilled
water for eight thousand (8,000) hours per
year, delivered at 45 degrees Fahrenheit.
4. Section 3.01 of the AGREEMENT is changed to read
as follows:
3.01 PURCHASER will purchase all steam and
chilled water which it consumes at the Xxxxxxxx
Complex (which SUPPLIER can and will supply and
which can be delivered to the points of
consumption throughout said Complex). This
requirement is not intended as a warranty of
the continued consumption of any particular
quantity of steam or of chilled water,
notwithstanding the provisions of Section
2.02(c) above.
5. Section 5.01 of the AGREEMENT is deleted in its
entirety. The following is substituted therefor:
5.01 PURCHASER will pay the following fixed
prices for each 1000 lbs. of steam per hour at
150 psi purchased pursuant to Section 3.01
above:
Delivery Period Quantity/Hr. Price
Twenty-Five (25) Years First 45,000 Pounds $1.00
Twenty-Five (25) Years All Steam Over $2.50
45,000 Pounds
6. The following sentence is added to Section 14.01
of the AGREEMENT:
Notwithstanding the foregoing, neither party
to this AGREEMENT shall be liable to the other
party for indirect, incidental, consequential
or punitive damages hereunder except as may be
otherwise provided herein.
7. All references to "thirty (30) days" in Sections
14.02 and 14.03 of the AGREEMENT are changed to
"sixty (60) days".
8. The following new Sections 21.10 is added to the
AGREEMENT:
21.10 The point of delivery from SUPPLIER to
PURCHASER shall be located at a point, to be
selected by SUPPLIER, on the Leased Site. This
provision is not intended to modify or change
SUPPLIER's obligation, to design, construct,
operate and maintain steam and chilled water
delivery and return pipes off of the Leased
Site as provided in Section 2 of this AGREEMENT
or to modify or change the provisions of
section 3.01 hereto.
9. The form of Exhibit "A" attached to the AGREEMENT
is deleted in its entirety. The Revised form of
Exhibit "A" dated June 6, 1989, attached hereto is
substituted therefor.
l0. Section 22.01 of the AGREEMENT is deleted in its
entirety. No substitution is made therefor.
11. All other terms, conditions and provisions of
the AGREEMENT which are not expressly deleted or
changed herein shall remain in full force and
effect.
Executed effective this first day of October, 1989.
PANDA ENERGY CORPORATION THE XXXX COMPANY
(SUPPLIER) (PURCHASER)
By:______________________ By:__________________
Xxxxxx X. Xxxxxx President
Chairman of the Board
PANDA-XXXXXXXX CORPORATION
BY: ________________________
Xxxxxx Xxxxxx
Secretary/Treasurer
STATE OF NEW YORK )
: ss:
COUNTY OF NEW YORK )
Executed and acknowledged by Xxxxxx X. Xxxxxx
as the act and deed of PANDA ENERGY CORPORATION
before the undersigned Notary Public this 25th day
of October, 1989 to certify which witness my hand
and seal of office.
Notary Public In and
For The State of New
York
(Official Seal)
My Commission Expires: April 7, 0000
XXXXX XX XXX XXXX )
: ss:
COUNTY OF NEW YORK )
Executed and acknowledged by Xxxxxx Xxxxxx as
the act and deed of PANDA ENERGY CORPORATION before
the undersigned Notary Public this 25th day of
October, 1989 to certify which witness my hand and
seal of office.
Notary Public In and
For
The State of New York
(Official Seal)
My Commission Expires: April 7, 0000
XXXXX XX XXXXXXX )
: ss:
COUNTY OF GEORGIA )
Executed and acknowledged by Xxxx X. Xxxxx as
the act and deed of THE XXXX CORPORATION before the
undersigned Notary Public this 24th day of October,
1989 to certify which witness my hand and seal of
office.
Xxx Xxxxx
Notary Public In and
For The State of New
York
(Official Seal)
My Commission Expires: March 3, 1992
EXHIBIT A
FIRST AMENDMENT TO COGENERATION ENERGY SUPPLY AGREEMENT
[See Exhibit 10.48 filed with this Registation Statement]
