FIRST AMENDMENT TO STEAM PURCHASE CONTRACT
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FIRST AMENDMENT TO STEAM PURCHASE CONTRACT dated as of August 1, 1991
(the "First Amendment"), to the Steam Purchase Contract (the "Steam Purchase
Contract") dated as of November 30, 1984, by and between XXXXXXXX XXXXX, Inc., a
Delaware corporation ("Buyer"), and COGENTRIX OF NORTH CAROLINA, INC., a North
Carolina corporation and the successor by merger to Cogentrix Carolina Leasing
Corporation ("Cogentrix"). Terms used herein which are not defined are used as
defined in the Steam Purchase Contract.
W I T N E S E T H:
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WHEREAS, the Buyer and Cogentrix have agreed to revise the pricing
formula for steam purchased by the Buyer from Cogentrix at the Buyer's Plant.
NOW, THEREFORE, in consideration of the mutual agreements contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Buyer and Cogentrix hereby agree as follows:
1. Amendments to Steam Purchase Contract. (a) The Steam Purchase
Contract is hereby amended by adding an additional clause (iii) in Section 5(a)
thereof which clause reads as follows:
(iii) Cogentrix and the Buyer agree to work together in good faith to
explore means by which the Buyer's ,steam cost can be minimized without
jeopardizing the revenues of the Cogeneration Facility. Each of
Cogentrix and the Buyer further agrees to use best efforts to develop a
plan no later than August 1, 1992 to achieve this goal.
(b) The Steam Purchase Contract is hereby amended by deleting section
5(b) in its entirety and substituting the following therefor:
(b) For the period beginning August 1, 1991 and continuing through July
31, 1992, the price for low pressure steam shall be $5.20 per thousand
pounds. For the period beginning August 1, 1992 and continuing through
July 31, 1993, the price for low pressure steam shall be $5.40 per
thousand pounds. For the period beginning August 1, 1991 and continuing
through July 31, 1992, the price for high pressure steam shall be $4.24
per MMBTU. For the period beginning August 1, 1992 and continuing
through July 31, 1993, the price for high pressure steam shall be $4.41
per MMBTU. Commencing on August 1, 1993, and on the first day of each
Term Year thereafter, new purchase rates for steam and BTU's shall be
computed based on the percentage increase, if any, in the Delivered
Cost of Coal (as hereinafter defined) from August 1, 1985. The new
purchase rates for steam and BTU's shall be computed by multiplying, in
the case of Paragraph 5 (a) (i) above, $5.10 per thousand pounds, and,
in the case of Paragraph 5 (a) (ii) above, the rate set forth therein,
whichever is applicable (the "Base Rate") times a fraction, the
numerator of which shall be the Delivered Cost of Coal in effect on the
first day of the Term Year for which such calculation is being made and
the denominator of which shall be the Delivered Cost of Coal on August
1, 1985. As used herein, the "Delivered Cost of Coal" shall refer to
the total price per ton paid by Cogentrix to purchase coal including
the transportation cost per ton for delivery to the Cogeneration
Facility. In no event shall such purchase prices be less than either of
the Base Rates.
2. Full Force and Effect. Except as modified hereby, the Steam Purchase
Contract has not been amended or-modified and is and shall remain in full force
and affect.
3. Definitions. Capitalized terms used herein and not otherwise defined
shall have the meanings assigned to them in the Steam Purchase Contract.
4. Counterparts. This First Amendment may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed an
original, and it shall not be necessary in making proof of this First Amendment
to produce or account for more than one such counterpart.
5. Governing law. This First Amendment and the Steam Purchase Contract,
as 'amended hereby, shall be deemed to be contracts made under and for all
purposes shall be construed in accordance with, the laws of the State of North
Carolina.
IN WITNESS WHEREOF, the undersigned have each caused this First Amendment to be
duly executed by the duly authorized officers and their corporate seal to be
here unto affixed and attached, all as of the year and day first above written.
XXXXXXXX XXXXX, INC.
By: /s/
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Title /s/
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ATTEST:
By: /s/
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Title /s/
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[Corporate Seal] COGENTRIX OF NORTH CAROLINA, INC.
By: /s/
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Title /s/
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ATTEST:
By: /s/
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Title /s/
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[Corporate Seal]
