FIRST AMENDMENT
TO
ENERGY SUPPLY AGREEMENT
This First Amendment ("First Amendment") to the Energy Supply
Agreement dated January 22, 1997 (the "Supply Agreement") by and among Heinz
USA, a Division of X.X. Xxxxx Company ("Heinz"), Allegheny Development
Corporation ("ADC") and Duquesne Energy, Inc. ("DEN") is entered into as of
March 11, 1997.
W I T N E S S E T H :
WHEREAS, Heinz, ADC and DEN, as parties thereto, desire to amend the
Supply Agreement in certain respects as more fully set forth below:
NOW, THEREFORE, in consideration of the foregoing premise and for
other good and valuable consideration, the receipt of which is hereby
acknowledged, and intending to be legally bound hereby, the parties agree as
follows:
1. New Section 2.09. A new Section 2.09 is hereby inserted to read in
its entirety as follows:
"2.09 Primary Electric Supplier. Section 2.01 hereof
references Heinz's primary electric supply contract in effect on the
Effective Date (the "Primary Electric Supply Contract"). In
consideration of the energy supply arrangement set forth herein, Heinz
hereby agrees that ADC's affiliate, Duquesne Light Company, shall be
the preferred vendor under any successor supply arrangement. If upon
termination of the Primary Electric Supply Contract, or any successor
thereto, Heinz receives a bona fide third party offer to contract for
the supply of electric energy to the Manufacturing Facility under
financial terms more favorable to Heinz than those offered by Duquesne
Light Company, Heinz shall award the new primary electric supply
arrangement to Duquesne Light Company, provided that Duquesne Light
Company matches the financial terms of the third party offer. It is
acknowledged for the purposes of this Section 2.09 that any third party
offer must be in compliance with all applicable regulatory
requirements. Nothing in this Section 2.09 is intended to restrict
Heinz from (i) soliciting or obtaining fair market rates under its
electric supply arrangements or (ii) exploring alternate energy
sources.."
2. New Section 3.01A. A new Section 3.01A is hereby inserted directly
following Section 3.01 to read in its entirety as follows:
"3.01A Incentive Credit. As an incentive to encourage Heinz to
enter into this Supply Agreement and continue to purchase energy
hereunder throughout the Term, Heinz shall receive a credit (the
"Incentive Credit") to be reflected against amounts otherwise payable
to ADC under this Article 3. The Incentive Credit shall be reflected on
the Consolidating Statement during each calendar month in which this
Agreement is in effect and shall equal (i) $20,874.11 per month during
the first sixty (60) calendar months during the Term and (ii)
$29,207.44 per month during all remaining calendar months during the
Term.
3. Amendment to Section 6.01. The phrase "net of the Incentive Credit"
is hereby inserted directly following the reference to "Demand Energy Charge" in
the parenthetical "(including, without limitation, the Demand Energy Charge)".
4. New Exhibit A. Exhibit A (Form of Consolidating Statement) to the
Supply Agreement is hereby deleted in its entirety and the new Exhibit A
attached hereto is substituted therefor.
5. New Exhibit B. Exhibit B (Stipulated Buy-Out Price) to the Supply
Agreement is hereby deleted in its entirety and the new Exhibit B attached
hereto is substituted therefor.
6. Amendment to Section 7.03 Section 7.03 is hereby amended by
deleting the reference to $250,000 as it appears in clause (ii) thereof and
substituting $500,000 therefor.
7. Effective Date of Amendment. This First Amendment shall be
effective immediately upon the execution hereof.
8. Confirmation of Agreement. Except as explicitly set forth above,
all of the provisions of the Supply Agreement are hereby ratified and confirmed.
9. Governing Law. This First Amendment shall be construed and enforced
in accordance with the laws of the Commonwealth of Pennsylvania.
10. Counterparts. This First Amendment may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one and the same document.
IN WITNESS WHEREOF, Heinz, ADC and DEN have caused this First Amendment
to be executed by their duly authorized officers, as of the date first above
written.
ATTEST: HEINZ USA
------------------------------ ------------------------------
ALLEGHENY DEVELOPMENT
CORPORATION
------------------------------ ------------------------------
DUQUESNE ENERGY, INC.
------------------------------ ------------------------------
EXHIBIT A
CONSOLIDATING STATEMENT
ENERGY CHARGES
A. Payable to DEN:
Steam:
aaa mlbs @ x per mlb $__________
[x to be calculated in accordance with 3.01(b)(i)]
B.
Payable to ADC:
Demand Charge
$----------
Steam:
aaa mlbs @ [UECCS - x]
$----------
Additional charge for natural gas (per Exhibit C)
Cmlbs @ [A-B]
$----------
Electricity
bbb kwhs @ UECCE $__________
Incentive Credit ($__________)
Total to ADC $__________
