FIRST AMENDMENT TO
COMPUTERIZED PROCESS CONTROL AGREEMENT
This FIRST AMENDMENT TO COMPUTERIZED PROCESS CONTROL AGREEMENT
(this "First Amendment"), effective as of January 1, 1997, is by and
between ROFAN SERVICES INC. ("RSI") and DESTEC ENERGY, INC. ("DEI").
RECITALS:
WHEREAS, RSI and DEI entered into the Computerized Process Control
Agreement, executed by the last party on August 2, 1993 (the
"Agreement"), whereby the parties set forth their understanding
pertaining to the MOD5 Process Control Systems for DEI's Plants (as those
terms are defined in the Agreement); and
WHEREAS, RSI and DEI now desire to amend the Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, RSI and DEI hereby
agree to the following terms, covenants, conditions and obligations as
amendment and supplement to the Agreement:
1. All terms, covenants, obligations and conditions in the
Agreement not superseded or amended by any provisions in this First
Amendment remain in full force and effect as originally written in the
Agreement. All capitalized terms used and not otherwise defined in this
First Amendment have the meaning assigned to such terms in the Agreement.
2. Subparagraphs 4.2(c), (d) and (e) of the Agreement are deleted
in their entireties.
3. Subparagraphs 4.3(b) and (c) of the Agreement are deleted in
their entireties.
4. Paragraph 9.2 of the Agreement is deleted in its entirety and
replaced by the following text:
9.2 RSI agrees to supply Maintenance Services, including
maintenance and adjustment of MOD5 HARDWARE parts, solely in
accordance with the SERVICE AGREEMENT which is incorporated as
Appendix A of this Agreement. RSI is not responsible for supply
of the MINICOMPUTER, but DEI shall acquire rights for the
services of MINICOMPUTER at DEI's PLANT. Unless otherwise agreed
in writing, DEI shall, at its expense, obtain and keep in full
effect throughout the term of this Agreement, a contract from the
manufacturer of the MINICOMPUTER providing for maintenance
service and will otherwise maintain the MINICOMPUTER and
associated software in good working order and make all necessary
and recommended adjustments and repairs thereto.
5. In Paragraph 1, Services, of Appendix A on page 19, the initial
unnumbered subparagraph is amended by deleting the first sentence and
replacing it with the following text:
To facilitate efficient use of SYSTEMS, RSI agrees to provide
and DEI agrees to acquire SYSTEM Maintenance Services as
provided hereunder.
6. Subparagraph 1(i) of Appendix A on page 19 is deleted in its
entirety.
7. The first sentence of subparagraph 1(ii) of Appendix A on page
20 is deleted in its entirety and replaced by the following text:
(ii) Maintenance Services for MOD5 HARDWARE and MOD5 SOFTWARE
include the assistance for implementation, where necessary, of
PRODUCT NOTICES for MOD5 HARDWARE and MOD5 SOFTWARE, on-request
preventive maintenance based on the specific needs of MOD5
HARDWARE, and remedial maintenance advice for MOD5 HARDWARE,
MOD5 SOFTWARE, firmware, and other HARDWARE MAINTENANCE
conducted by DEI.
8. Subparagraph 1(iii) of Appendix A on page 20 is deleted in its
entirety.
9. Subparagraph 3(i) of Appendix A on page 21 is deleted in its
entirety and replaced by the following text:
(i) For Maintenance Services described in Paragraph 1(ii)
performed at DEI's PLANT, DEI shall pay RSI a service charge in
the amount of RSI's standard charge for such services, plus
reasonable travel and living expenses. This fee is initially
$125.00 per hour. This charge is waived during the first ninety
(90) calendar days after the INSTALLATION DATE.
10. Subparagraph 3(ii) of Appendix A on page 21 is deleted in its
entirety and replaced by the following text:
(ii) For home based maintenance and support services described
in Paragraph 1(ii) above conducted at the home locations of RSI
and its suppliers, DEI shall pay RSI a quarterly fee determined
by multiplying the total number of MOD CANS it has in its
SYSTEMS (Schedule 1) by a standard service fee, or as otherwise
agreed in writing between DEI and RSI. This standard service
fee shall be subject to RSI's reasonable annual adjustment to
spread RSI's annual related support costs on a pro rata basis
on written notice.
11. This First Amendment shall be binding upon and inure to the
benefit of the successors and assigns of RSI and DEI. The pronouns of any
gender shall include the other gender and either the singular or plural
shall include the other.
IN WITNESS WHEREOF, the parties have executed this First Amendment
as of the day and year first above written.
ROFAN SERVICES INC.
By: /s/ X. X. Xxxxxxxxx
------------------------------
Name: X. X. Xxxxxxxxx
Title: Authorized Representative
DESTEC ENERGY, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Senior Vice President, Chief
Financial Officer and
Treasurer
