EXHIBIT 10.39
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STEAM SUPPLY AND OPERATING AGREEMENT
between
MULTITRADE GROUP, INC.,
as Seller and Operator
and
▇.▇. ▇▇▇▇▇▇ DE NEMOURS & CO.
as Buyer and Owner
Dated February 11, 1998
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TABLE OF CONTENTS
PAGE
SECTION 1. DEFINITIONS......................................................1
SECTION 2. TERM; INITIAL DELIVERY DATE; TERMINATION GENERALLY;
DUPONT OPTION....................................................4
SECTION 3. PURCHASE AND SALE OF STEAM ENERGY................................4
SECTION 4. METERING; INSPECTIONS; QUALITY CONTROL...........................5
SECTION 5. EXISTING EQUIPMENT...............................................6
SECTION 6. CONDITIONS TO MULTITRADE'S OBLIGATIONS...........................7
SECTION 7. OTHER COVENANTS..................................................8
SECTION 8. PAYMENT RATES AND TERMS..........................................9
SECTION 9. INTERRUPTION OF SERVICE OR OPERATIONS; FORCE MAJEURE.............9
SECTION 10. INDEMNIFICATION AND lIMITATIONS OF LIABILITY....................10
SECTION 11. INSURANCE.......................................................11
SECTION 12. ARBITRATION OF DISPUTES; ATTORNEY'S FEES........................12
SECTION 13. RENEWAL; TERMINATION............................................12
SECTION 14. MISCELLANEOUS...................................................15
EXHIBITS
Exhibit 4.1 - Steam Meter and System Interconnection Points Locations
Exhibit 4.2 - Malfunction Period Steam Calculation
Exhibit 6.6 - Condensate Return Parameters
Exhibit 13.3 - Termination Payment Schedule
STEAM SUPPLY and OPERATING AGREEMENT, dated February 11, 1998 (this
"Agreement") between MULTITRADE GROUP, INC., a Virginia corporation
("Multitrade") and ▇.▇. ▇▇▇▇▇▇ DE NEMOURS & CO., a Delaware corporation
("DuPont").
W I T N E S S E T H:
WHEREAS, Multitrade wishes to provide steam to, and to perform
certain other Multitrade Services for, DuPont at its Martinsville Plant facility
in ▇▇▇▇▇ County, Virginia; and
WHEREAS, DuPont wishes to have Multitrade provide and perform such
Multitrade Services at its Martinsville Plant facility, as specified herein;
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual agreements hereinafter set forth to be kept and performed, the parties
hereto agree as follows:
AGREEMENT
SECTION 1. DEFINITIONS.
Unless the context otherwise requires, the following terms have, for
purposes of this Agreement, the respective meanings set forth below:
"AAA" has the meaning assigned thereto in Section 12.1(a).
"Agreement" has the meaning assigned to such term in the first
paragraph hereof.
"Air Permit" means the air permit necessary for the operation of the
System on the terms provided herein issued to Multitrade on January 16, 1998 by
the State of Virginia Department of Environmental Quality.
"Applicable Law" means any law, rule, regulation, ordinance,
judgment, decree, permit or similar decision of any federal, state or local
governmental authority, agency, court or similar body having jurisdiction
(including without limitation any Environmental Laws), which is applicable to or
affects the ownership, operation, testing, maintenance, leasing or use of the
System, the Existing Equipment, the Martinsville Plant, the System Site or the
Martinsville Plant Site.
"Dedicated Capacity" has the meaning assigned to such term in
Section 3.2 of this Agreement.
"DuPont" has the meaning assigned in the first paragraph hereof.
"Environmental Law" means all federal, state and local laws, rules,
regulations, directives, decrees, ordinances, codes, rules, orders, approvals of
governmental authorities, licenses or standards, including without limitation,
the Comprehensive Environmental Response
Compensation and Liability Act of 1980 (42 U.S.C. Section 9601 et seq.), the
Resource Conservation and Recovery Act (42 U.S.C. Section 6901 et seq.),
relating to pollution or protection of human safety, health or the environment
(including without limitation, ambient air, surface water, ground water land
surface or subsurface strata), including, without limitation, laws and
regulations relating to emissions, discharges, releases or threatened releases
of hazardous substances, or otherwise relating to the manufacture, processing,
refining, distribution, use, management, treatment, storage, disposal,
transport, recycling, reporting or handling of hazardous substances.
"Event of Force Majeure" means any event which is beyond the control
of a party. An Event of Force Majeure shall include, but not be limited to, any
of the following: (1) act of god, war or the public enemy whether declared or
not; (2) public disorders, civil disturbance, insurrection, rebellion, sabotage,
terrorism or the threat of such acts, riots, violent demonstrations; (3) any
effect of unusual natural elements, including fire, earthquakes, floods,
lightning, hurricanes, or other unusual natural calamities; (4) explosion,
accident or fire; (5) strikes or lock-outs or other collective or industrial
action by workers or employees; (6) the issuance, absence, suspension, repeal,
amendment, modification, supplement, termination, interruption, denial or
failure of renewal of any permit; provided that any such event is not due to the
negligence of the party seeking the permit in failing to file a timely and
complete application therefor; (7) radioactive contamination or ionizing
radiation; (8) aircrash, shipwreck, train wrecks or failures or delays of
transportation; (9) the existence of Hazardous Waste at either or both of the
Sites; and (10) orders or judgments of any governmental, regulatory or judicial
authority.
"Existing Equipment" means, collectively, one steam turbine driven
chilled water refrigeration machine, one spare steam turbine driven
refrigeration machine with associated chilled water pumps and spare, and raw
water condensing system, one raw water pump and spare, raw water/chilled water
heat exchanger and one air compressor rated at 1,970 CPM at 100 psi (for normal
operation) and one spare compressor, each owned by DuPont and located in the
Martinsville Plant.
"Fixed Capacity Component" means $37,500.00 for each Month during
the Term.
"Ground Lease" means the Ground Lease dated of even date herewith
between the parties hereto pursuant to which DuPont shall lease the System Site
to Multitrade and provide access to the Martinsville Plant to Multitrade for the
purposes provided herein.
"Hazardous Materials" means any chemicals that have the potential
for adverse impact on human health or the environment, pollutants, contaminants,
wastes, toxic substances, petroleum and petroleum products, including, without
limitation, "hazardous substances," "hazardous wastes," "toxic substances," and
"toxic pollutants," as defined and identified pursuant to any Environmental Law.
"Initial Delivery Date" means June 1, 1998.
"Initial Term" has the meaning assigned thereto in Section 2.1.
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"Martinsville Plant" means the manufacturing and warehouse
facilities used for spinnerette manufacturing owned by DuPont located at ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
"Martinsville Plant Site" means the site on which the
Martinsville Plant is located.
"Month" means a calendar month.
"Multitrade" has the meaning assigned in the first paragraph
hereof
"Multitrade Services" means, collectively, the Steam Services and
the Operating Services.
"Operating Services" means the operating services to be provided by
Multitrade pursuant to Section 5 hereof.
"PSIG" means pounds per square inch gauge.
"Point of Delivery" means the discharge side of the Steam Meter.
"Sites" means, collectively, the Martinsville Plant Site and the
System Site.
"Standard Practices" means practices and standards, as changed
during the term of this Agreement, that are generally accepted to test, operate
and maintain equipment such as the Existing Equipment safely and efficiently and
that conform to the manufacturer's reasonable operation and maintenance
guidelines but, in any event, practices and standards that are not materially
different from DuPont's practices and standards for the operation of the
Existing Equipment on the date hereof (as provided to Multitrade pursuant to
Section 6.7).
"Steam Meter" has the meaning assigned in Section 4.1 hereof.
"Steam Services" means the services to be provided by Multitrade
pursuant to Sections 3 and 4 hereof.
"System" means a steam production facility and steam distribution
system, to be constructed, owned and operated by Multitrade and to be located in
▇▇▇▇▇ County, Virginia, to provide the Steam Services to the Martinsville Plant,
as provided and on the terms contemplated by this Agreement.
"System Site" means the site on which the System is to be located.
"Technician" means an independent technician, reasonably acceptable
to Multitrade and DuPont, who has expertise in the operation and maintenance of
steam production facilities similar to the System.
"Term" has the meaning assigned in Section 2.1.
"Termination Payment" means, for any date of termination, the amount
set forth opposite such date in Exhibit 13.3.
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"Variable O&M Component" mean $0.73 per one thousand (1,000) pounds
of steam delivered to DuPont as provided in this Agreement.
SECTION 2. TERM; INITIAL DELIVERY DATE; TERMINATION GENERALLY;
DUPONT OPTION
2.1 TERM. This Agreement shall be in effect for the Term, subject to
Sections 2.3 and 13 hereof. For purposes of this Agreement, "Term" means the
period commencing on the date of this Agreement and ending May 30, 2003
("Initial Term"), together with any additional extensions of this Agreement
after the Initial Term to which both parties may agree pursuant to Section 13.1.
2.2 INITIAL DELIVERY DATE. Subject to the terms of this Agreement,
the Multitrade Services to be provided by Multitrade under the terms of this
Agreement shall commence on the Initial Delivery Date and shall run continuously
from such date during the Term, unless this Agreement shall have been terminated
at an earlier date pursuant to the terms hereof.
2.3 TERMINATION GENERALLY; DUPONT OPTION.
(a) DuPont may terminate this Agreement, at any time with or
without cause, on sixty (60) days' written notice to
Multitrade, on the termination date specified in such notice
(such date to be the last day of a month and to be no earlier
than the first day following such 60 day notice period). In
the event of a termination under this Section 2.3(a),
Multitrade may discontinue provision of the Multitrade
Services hereunder and DuPont shall only be required pay a
Termination Payment as provided in Section 13.3.
(b) In addition to Section 2.3(a), this Agreement may be
terminated as provided and with the effect specified In
Section 13.2.
SECTION 3. PURCHASE AND SALE OF STEAM ENERGY
3.1 PURCHASE AND SALE OBLIGATIONS. Subject to the term of this
Agreement, DuPont agrees to purchase and pay for, and Multitrade agrees to sell
to DuPont, steam energy generated by the System during the Term in an amount
equal to one hundred (100) percent of the steam requirements for the
Martinsville Plant; provided, however, that Multitrade shall not be obligated to
sell to DuPont steam in excess of the Dedicated Capacity. The cost to DuPont for
the Steam Services shall be calculated in accordance with Section B hereof.
Title to and risk of loss of all such steam provided by Multitrade to DuPont
hereunder shall pass from Multitrade to DuPont at the Point of Delivery.
3.2 DEDICATED CAPACITY. Subject to Sections 6 and 9 and the other
terms hereof, during the Term Multitrade will make available to DuPont at the
Point of Delivery on a daily 24-hour basis at least 40,000 pounds per hour of
dry saturated steam at pressures to be specified by DuPont up to 150 PSIG (the
"Dedicated Capacity").
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3.3 MANNER OF OPERATION; NOTIFICATION. Multitrade agrees to use
reasonable diligence to maintain and operate the System in such a manner as to
avoid any interruption of service to DuPont. Multitrade shall notify DuPont in
writing of its normal operating schedule, start-up and shut-down times and any
changes thereto.
3.4 COMPLIANCE WITH LAWS. Multitrade agrees to operate the System up
to the Point of Delivery in accordance with the requirements of all Applicable
Laws. Except as provided in Section 6.9, Multitrade shall be responsible for
compliance with all Applicable Laws related to air quality, odor, noise, waste
water disposal, solid waste disposal, or other conditions for the protection of
the environment, or otherwise, which may apply to the System.
3.5 ADDITIONAL CAPACITY. (a) DuPont shall have the right during the
term to take up to the Dedicated Capacity of steam from the System. DuPont shall
reasonably consider any request by Multitrade to release capacity to Multitrade
if Multitrade wishes to sell steam to other customers and shall not unreasonably
withhold its consent to any such request. If Multitrade sells steam to any such
other customers, Multitrade shall, for the applicable period, prorate the Fixed
Capacity Component payment for all customers and shall, if necessary, adjust the
Variable O&M Component cost hereunder so that such charge to DuPont is no less
favorable than the comparable charge payable by another such customer.
Multitrade shall compensate DuPont (through offset against the Variable O&M
Component payment payable by DuPont hereunder for the applicable period) for its
out of pocket costs for water, gas and electricity used to serve non-DuPont
customers as reasonably estimated by DuPont and notified in writing to
Multitrade.
(b) Multitrade shall have the right at any time during the Term to
request and DuPont will not unreasonably withhold permission to add capacity to
the System.
3.6 CONDENSATE RETURN. Multitrade agrees to accept condensate return
from DuPont during the Term of this Agreement. Multitrade will install and
maintain a condensate system that will connect the System to a single interface
with DuPont's existing condensate system in the Martinsville Plant. Such
connection shall be made at a mutually agreeable point within DuPont's existing
boiler plant.
SECTION 4. METERING; INSPECTIONS; QUALITY CONTROL
4.1 QUALITY OF STEAM; METERING. Multitrade agrees to deliver to
DuPont high quality steam, with standards of at least pH 9 (plus or minus 0.5)
and 3 parts per million or less carryover, and to maintain a suitable steam
flow, pressure recording and totalizing meter ("Steam Meter"). The Steam Meter
and other interconnection points shall be located as specified in Exhibit 4.1.
Multitrade agrees to inject into the steam, to the reasonable satisfaction of
DuPont, neutralizing and/or filming amine to reduce corrosion in the Condensate
Return system.
4.2 CALCULATION; INSPECTION. (a) Multitrade will calculate DuPont's
Monthly steam usage based on readings by Multitrade of the Steam Meter. DuPont
will be entitled to adequate notice and opportunity to have its representative
present at any such reading and may inspect the Steam Meter charts at any time.
If there is any dispute as to the Steam Meter's accuracy or condition, the
disputing party may, at its own expense, engage the Technician to test
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the Steam Meter, and the Technician's determination will be binding on the
parties hereto; provided that the cost of the Technician will be borne by
Multitrade if the Steam Meter is found to be in need of repair. If the
Technician determines that the Steam Meter is in need of repair or replacement,
such repair or replacement will be made as soon as practicable at Multitrade's
expense. Multitrade shall notify DuPont of the completion of any such repair or
replacement.
(b) The amount of steam delivered to DuPont during any such
malfunction period shall be calculated as provided in Exhibit 4.2.
4.3 CALIBRATION. Multitrade agrees, at no expense to DuPont, to have
the Steam Meter calibrated by the Technician at the end of the first 180
calendar days of the Term and at 180-day intervals thereafter during the Term.
DuPont will be entitled to adequate notice and opportunity to have its
representative present at any such calibration. A copy of the written report of
the Technician's findings and calibrations shall be provided to DuPont for its
information.
SECTION 5. EXISTING EQUIPMENT
5.1 OPERATING AND MAINTENANCE OF EXISTING EQUIPMENT. From the
Initial Delivery Date, Multitrade will operate and maintain the Existing
Equipment in the ordinary course of business and in accordance with Standard
Practices. DuPont shall be fully responsible for compliance with all Applicable
Law related to air quality, odor, noise, Hazardous Waste disposal, waste water
disposal, solid waste disposal, or other conditions for the protection of the
environment, or otherwise, which may apply to the Existing Equipment. So long as
Multitrade is operating and maintaining the Existing Equipment in accordance
with the terms of this Agreement, and subject to DuPont's rights hereunder (and
its obligation to comply with Applicable Laws). DuPont shall not interfere with
or seek to direct such work by Multitrade. Multitrade shall not be responsible
for, and DuPont shall have sole control over, DuPont's business, corporate
administration, accounting, legal compliance and tax matters. The cost to DuPont
of the Operating Services shall be as provided in Section 8 hereof.
5.2 SCOPE OF MAINTENANCE. Multitrade's obligation to maintain the
Existing Equipment pursuant to Section 5.1 above shall be limited to routine and
not Major Maintenance of such Existing Equipment. For purposes hereof, "Major
Maintenance" means maintenance which, if performed, would be treated under
applicable U.S. Federal tax law and/or regulation as a capital improvement to
the Martinsville Plant. Multitrade may at its option perform Major Maintenance
on the Existing Equipment only at the request and expense of DuPont, on terms
and conditions to be mutually agreed at the relevant time.
5.3 DUPONT PRODUCTS. To the extent not economically disadvantageous
to Multitrade, Multitrade shall use reasonable efforts to purchase and use
DuPont refrigerants in connection with its operation of the Existing Equipment
hereunder,
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SECTION 6. CONDITIONS TO MULTITRADE'S OBLIGATIONS
Multitrade's obligations under this Agreement are conditioned upon
the performance by DuPont of the following obligations and/or the continued
satisfaction of the following conditions, as the case may be, or the waiver of
any or all thereof by Multitrade:
6.1 GROUND LEASE. DuPont shall not be in breach of its obligations
under the Ground Lease. The Ground Lease shall be in full force and effect.
6.2 ACCESS. Multitrade shall have access to the System Site and the
Existing Equipment on a continuing and uninterrupted basis, on the terms
provided in the Ground Lease. DuPont shall assure that third parties' access to
the System Site and the Martinsville Plant is reasonably controlled and
coordinated with Multitrade so as not to interfere unreasonably with
Multitrade's performance of the Multitrade Services. DuPont shall make the
Existing Equipment available to Multitrade in condition and circumstances
capable of being operated in accordance with the standards set forth in this
Agreement.
6.3 UTILITY CONNECTIONS. Multitrade shall be able to (a)
inter-connect the System to the existing natural gas service line owned by
Southwestern Virginia Gas company at the current rate for natural gas paid by
DuPont, (b) inter-connect the System to existing electricity, sewage, telephone
and water lines, and, in the case of (a) and (b), all such utility connections
shall remain in effect.
6.4 FUEL; WATER; ELECTRICITY. DuPont shall, at no cost to
Multitrade, provide at all times all (i) natural gas, (ii) process, make-up and
potable water and (iii) electricity necessary to perform the Multitrade Services
in accordance with this Agreement. DuPont also shall maintain at all times, at
no cost to Multitrade, a supply of No. 2 fuel oil adequate to permit Multitrade
to operate the System in accordance with this Agreement on a uninterrupted basis
as back-up to the natural gas to be provided by DuPont is provided above. DuPont
shall provide evidence reasonably satisfactory to the State of Virginia
Department of Environmental Quality and Multitrade that such No. 2 fuel oil
provided by DuPont meets the sulphur content requirements set forth in the Air
Permit. It is acknowledged that all electricity provided to Multitrade (tenant)
by DuPont (landlord) hereunder is provided by DuPont in its capacity as a
landlord pursuant to the Ground Lease.
6.5 MARTINSVILLE PLANT. DuPont shall, at no expense to Multitrade,
ensure at all times that DuPont's equipment is appropriate for operation with
the System and that a proper interface is maintained between such equipment and
the System on DuPont's side of the Point of Delivery.
6.6 STEAM CONDENSATE. DuPont agrees to return and deliver to
Multitrade steam condensate of a quality reasonably satisfactory to Multitrade
consistent with the standards of pH, hardness, level of dissolved solids and
conductivity set forth on Exhibit 6.6.
6.7 COOPERATION; INFORMATION; OPERATING MATERIALS; SPARE PARTS.
DuPont shall cooperate with Multitrade and, upon request of Multitrade,
provide access to information in control of DuPont that may be reasonably
necessary to Multitrade in performing the Multitrade Services, including but not
limited to current operation and maintenance manuals, specifications,
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diagrams, test results, warranties and other information ("Operating
Materials"); provided that DuPont shall provide to Multitrade promptly after its
signature hereto its Operating Materials related to the Existing Equipment.
DuPont shall make available to Multitrade any spare parts for the Existing
Equipment in DuPont's possession on the date hereof for use by Multitrade in
connection with Multitrade's performance of the Operating Services.
6.8 LICENSING AND PERMITS. (a) GENERAL. DuPont shall, at no cost to
Multitrade, obtain and maintain in effect, any and all permits, consents and
approvals necessary under Applicable Law for continuous operation of the
Existing Equipment, other than any such permits, consents and approvals required
to be maintained by Multitrade in order to engage in the business of providing
the Operating Services. DuPont shall deliver to Multitrade copies of any such
permits, consents and approvals to be obtained by DuPont as may be pertinent to
Multitrade's performance of such Services, promptly upon request.
(b) AIR PERMIT. The Air Permit shall have been issued on terms
reasonably acceptable to Multitrade on or before February 1, 1998, shall be in
full force and effect and not subject to revocation, amendment or modification.
6.9 DISPOSAL OF RESIDUE. DuPont shall, in accordance with all
Applicable Laws, ensure that all residue (including any Hazardous Waste)
generated by the System and/or the Existing Equipment is stored, handled,
maintained and/or disposed properly. Multitrade shall perform at its cost
appropriate tests to determine the nature of any Hazardous Waste to be delivered
to DuPont under this Agreement and shall provide copies of such test results to
DuPont at the time of such delivery.
6.10 MULTITRADE BOARD. This Agreement, the Ground Lease and the
performance of Multitrade's obligations under such agreements, shall have been
approved by Multitrade's Board of Directors.
SECTION 7. OTHER COVENANTS
7.1 NEW BUYER/CHANGE IN LOAD. In the event that DuPont or Multitrade
shall propose (a) that one or more third parties replace or join DuPont as a
purchaser of Steam Services hereunder, and/or (b) any material change in the
quantity of steam to be sold by Multitrade hereunder, it is the intention of the
parties to negotiate in good faith changes in the terms of this Agreement
(including without limitation the compensation payable to Multitrade) to address
such changed circumstances on a mutually agreeable basis.
7.2 COOPERATION GENERALLY. Each party shall cooperate with the other
party to the fullest extent reasonably practicable to enable each such party to
discharge its obligations under this Agreement. Multitrade shall, at DuPont's
request, reasonably cooperate with and provide reasonable assistance to DuPont
in connection with any safety, health or environmental audits or related
monitoring or record keeping obligations of DuPont.
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SECTION 8. PAYMENT RATES AND TERMS
8.1 TIMING. DuPont will pay Monthly for the Multitrade Services
provided by Multitrade, subject (as to any disputed amounts) to Section 12.
8.2 AMOUNT. The amount that DuPont will pay for the Multitrade
Services will be, for any Month, an amount equal to the sum of (i) the Fixed
Cost Capacity Component for such Month plus (ii) the Variable O&M Component for
such Month, such Variable O&M Component to be based on a delivered, unit price
per 1,000 pounds of dry saturated steam, as set forth in this Agreement and
measured in accordance with Section 4.3, plus (iii) if applicable, any amount
payable to Multitrade for any Major Maintenance performed by Multitrade in
accordance with and subject to the terms of Section 5.2. All steam costs will be
based on the steam actually delivered to the Point of Delivery as measured by
the Steam Meter. In the event of any termination of this Agreement, payments as
calculated under this Section 8 shall be made through the date of effectiveness
of such termination.
8.3 BILLING. Amounts owed by DuPont to Multitrade hereunder will be
billed monthly to DuPont by Multitrade and payments will be due within 30 days
after receipt by DuPont of Multitrade's invoice. Multitrade may charge a 1.5%
late charge on any ▇▇▇▇ not paid within 30 days of the due date, subject (as to
any disputed amounts) to Section 12; provided, that, in the event that any
amount disputed by DuPont hereunder is determined in accordance with this
Agreement not to be owed by DuPont, no such late charge shall be payable by
DuPont in respect of such amount. The first such billing by Multitrade hereunder
shall be issued to DuPont no later than 30 days subsequent to the Initial
Delivery Date.
SECTION 9. INTERRUPTION OF SERVICE OR OPERATIONS; FORCE MAJEURE
9.1 MULTITRADE INTERRUPTIONS. Multitrade agrees to give DuPont
immediate notice of any unplanned interruption of the steam supply and to give
as much prior written notice as possible of all planned interruptions of the
steam supply. Any planned interruption of the steam supply will be coordinated
with DuPont. The parties hereby acknowledge that, in accordance with state
regulations, service of each boiler will be interrupted annually for a period of
one week to conduct a boiler inspection and, during each such period, DuPont
shall adjust its steam requirements hereunder to accommodate each such shutdown.
9.2 FORCE MAJEURE - STEAM SERVICES. An unplanned interruption of
Steam Services that is attributable to any Event of Force Majeure will not
constitute a branch of this Agreement by Multitrade, and Multitrade will not be
liable to DuPont for any damages arising out of or related to any such
interruption, provided Multitrade exercises diligent efforts to restore normal
operations as soon as possible. During any such period of interruption, DuPont
shall be obligated to make Fixed Cost Capacity Component payments without
reduction and shall be liable for any Variable O&M Capacity Payments, all as
calculated under Section 8.
9.3 FORCE MAJEURE - OPERATING SERVICES. An unplanned interruption of
Operating Services that is attributable to any Event of Force Majeure will not
constitute a breach of this Agreement by Multitrade, and Multitrade will not be
liable to DuPont for any damages
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arising out of or related to any such interruption, provided Multitrade
exercises diligent efforts to restore normal operations as soon as possible.
During any such period of interruption, DuPont shall be obligated to make Fixed
Cost Capacity Component payments without reduction and shall be liable for any
Variable O&M Capacity Payments, all as calculated under Section 8.
9.4 EMERGENCY STEP-IN RIGHTS. (a) In the event that any unplanned
interruption of Steam Services occurs for reasons other than an Event of Force
Majeure or an event which Multitrade is diligently proceeding to cure, DuPont,
subject to the terms and conditions of this Section 9.4, and at its sole cost
and expense, shall have the right to enter and assume operational control of the
System in order to provide steam to the Martinsville Plant to meet its
requirements, such DuPont control to continue solely until such time as
Multitrade or its designee shall advise DuPont that is able to re-assume control
of the System and resume steam deliveries pursuant to this Agreement. DuPont
shall immediately surrender control of the System to Multitrade upon notice from
or on behalf of Multitrade as aforesaid. Multitrade shall reasonably cooperate
with DuPont in connection with DuPont's exercise of its rights under this
Section 9.4. Any such period of time during which DuPont shall control the
System as provided in this Section 9.4 is referred to herein as an "Emergency
Control Period." The parties acknowledge that the need for such emergency
control is highly unlikely and DuPont agrees with Multitrade to exercise all
reasonable efforts to avoid instituting an Emergency Control Period. Prior to
instituting any such Emergency Control Period, DuPont shall make all reasonable
efforts to contact Multitrade to determine whether Multitrade is able to control
the System.
(b) Notwithstanding the foregoing, in the event that DuPont
exercises its rights under this Section 9.4, during any such Emergency Control
Period (i) DuPont shall remain obligated to make Fixed Cost Capacity Component
payments as provided in Section 8; (ii) DuPont shall maintain and operate the
System in compliance with permits, licenses and all Applicable Law (at its sole
expense and liability); and (iii) DuPont shall exercise the same standard care
in the operation and maintenance of the System which it exercises in the
operation and maintenance of its own facilities. In addition, DuPont shall
defend, indemnify and hold harmless Multitrade (including its officers,
employees, subcontractors, agents and partners, and their respective successors
and assigns) from and against any and all liability, claim, injury (including
death resulting therefrom), property damage loss, fine, penalty or assessment by
any agency, suit, cause of action, proceeding, judgment, and cost or expense
(including cost of defense, settlement and reasonable attorney's fees), which is
directly or indirectly caused by, relates to, or arises out of, any act or
omission of DuPont, its agents, employees or subcontractors, including without
limitation any failure to comply with any Applicable Law, during any such
Emergency Control Period, whether or not any such liability, claim, injury,
property damage, loss, fine, penalty, assessment, suit, cause of action,
proceeding, judgment, cost and/or expense occurs or arises during or after the
pendency of any such Emergency Control Period.
SECTION 10. INDEMNIFICATION AND LIMITATIONS OF LIABILITY
10.1 RECIPROCAL INDEMNIFICATION. Multitrade and DuPont,
respectively, as indemnitor, will indemnify the other, as indemnitee, and hold
harmless it, its partners, officers, directors, agents and affiliates, and their
respective successors and assigns, from and against any and all losses
(excluding consequential losses), damages, expenses and liabilities suffered or
paid
-10-
as a result of any and all claims, demands, fines, penalties, settlements,
suits, causes of actions, proceedings, judgments and liabilities, including
reasonable counsel fees incurred in litigation or otherwise, assessed, incurred
or sustained by or against any such party with respect to or resulting from
injuries to or death of persons, including, but not limited to, employees of
either party hereto, and damage to or destruction of property of either party
hereto, arising out of, or in any way connected with, the failure to comply with
any Applicable Law of any authority having proper jurisdiction, or the
performance or non-performance of any provision of this Agreement or the Ground
Lease, or any operations conducted hereunder or the use and occupancy of the
System Site, by indemnitor, its agents or employees, which such indemnitor is
responsible for complying with, performing or non-performing, as the case may
be, excepting only such injury, death, damage or destruction as may be caused by
the gross negligence or willful misconduct of the indemnitee, its agents or
employees. Each indemnitee upon the indemnitee's request, (a) shall defend any
suit asserting a claim covered by this indemnity or (b) if the indemnitor elects
to control the defense of such suit, shall cooperate with the indemnitor in
respect of any matter related to such defense. The indemnitor shall pay all
costs that may be incurred by the indemnitee, including reasonable attorney's
fees, within twenty (20) days of any written request therefor, subject (as to
any disputed amounts) to Section 12.
10.2 LIMITATION OF LIABILITY. Neither Multitrade, DuPont, nor their
respective partners, officers, directors, employees, representatives, agents or
independent contractors, because of any of their respective acts or omissions
relating to the ownership, use, construction, operation or maintenance of the
System or the Existing Equipment, or because of their respective compliance or
noncompliance with this Agreement, shall have any liability, whether in
contract, warranty, tort, strict liability, or other legal theory, for any
indirect, incidental or consequential damages of the other party, including but
not limited to loss of anticipated profits, or revenues; loss of use of the
System, the Existing Equipment or the Condensate Return system; non-operation or
increased expense of operation of the System, the Existing Equipment or the
Condensate Return system, as applicable; and increased cost of capital or cost
of purchased or replacement steam.
10.3 GROUND LEASE. The terms of Sections 10.1 and 10.2 shall
supplement and not limit the terms of the Ground Lease.
SECTION 11. INSURANCE
11.1 SYSTEM INSURANCE. Multitrade shall maintain in full force and
effect, at its expense, casualty and liability insurance on the System and
liability insurance for its undertakings hereunder equal to at least the amounts
required by statute and the amounts customarily maintained in the industry for
steam generating facilities of similar size and type as the System. Multitrade
shall also maintain excess liability coverage with a minimum limit of
$2,000,000.
11.2 BUSINESS INTERRUPTION INSURANCE. If either party desires to
obtain business interruption insurance for its respective facilities, each
agrees, upon reasonable written notice to the other, to permit inspection of its
facilities (in the case of DuPont, to include the Existing Equipment but not any
proprietary equipment or process) by representatives of the insurance company
during reasonable working hours.
-11-
SECTION 12. Arbitration of Disputes; Attorney's Fees
12.1 ARBITRATION. (a) Any dispute between Multitrade and DuPont
arising under, out of or in connection with this Agreement shall, if not
resolved amicably between the parties within 30 days after written notice of
such dispute from one party to the other, be settled by (i) if the parties so
agree within a further 5 business day period, by mediation under rules, and
before a mediator, each to be agreed within such 5 business day period or (ii)
if the parties do not so agree to mediation, a mediator and rules within such 5
business days, at the initiation of either party, by arbitration pursuant to the
rules of the American Arbitration Association ("AAA"). Any such mediation shall
last no more than 90 days from the date on which the parties so agree to
mediate. If at the end of such 90 day period the subject dispute is not resolved
either party may institute such arbitration as aforesaid.
(b) Any arbitration of any such dispute hereunder shall be initiated
by a party by the giving of a written notice of arbitration hereunder to the
other party. Within 30 days after the date of such notice of arbitration, each
of Multitrade and DuPont shall appoint an arbitrator, which two arbitrators
shall jointly select a third arbitrator who shall serve as chairman of the
arbitration panel. If either Multitrade or DuPont does not select its arbitrator
within 30 days after written notice of arbitration is given, or if the two
arbitrators cannot agree upon a third arbitrator within 30 days after the
appointment of the later of such two initial arbitrators, the AAA shall make the
appointment or appointments from its panel of arbitrators. The arbitration
proceedings shall take place in the State of Virginia or such place as may
otherwise be mutually agreed to by the parties.
(c) The decision of the arbitrator shall be binding upon the parties
and conclusive as to disputes relating to this Agreement. Upon rendering a
decision, the arbitrators shall promptly execute and acknowledge the decision
and deliver a copy to each party. A judgment confirming the decision may be
rendered by any court that has jurisdiction over the matter.
(d) Pending resolution of any controversy or dispute, performance by
each party shall continue so as to maintain the status quo as it existed prior
to the initial notice of a dispute hereunder. Resolution of any controversy or
dispute involving the payment of money by one party to the other shall include
payment of interest, compounded Monthly on all outstanding payments determined
to be payable by a party, at a rate per annum equal to the "prime interest rate"
quoted from time to time by the Chase Manhattan Bank, N.A., or any successor
bank thereto, plus one percent (1%).
12.2 ATTORNEY'S FEES AND COST. In any arbitration or court
proceeding to enforce any arbitration award made pursuant to this Section 12,
each party shall be responsible for its respective legal costs. The cost of any
mediation or arbitration shall be split equally between the parties
participating in the proceeding.
SECTION 13. RENEWAL; TERMINATION
13.1 RENEWAL. This Agreement my be renewed by agreement of the
parties hereto for such periods after the Initial Term as the parties may agree.
Provided the notifying
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party is not in default under any of the terms of this Agreement, either party
wishing to negotiate for a renewal of this Agreement shall notify the other in
writing of its desire to so negotiate on or before the last day of March in the
year in which this Agreement would otherwise expire. In the event of a renewal
of this Agreement beyond the Initial Term, it is the intention of the parties to
agree to a mutually acceptable reduction in the Fixed Capacity Component payable
by DuPont to Multitrade during such renewal period.
13.2 Termination
(a) FAILURE OF CONDITIONS. Without limiting the obligation
of each party hereunder and subject to the other terms
of this Agreement, this Agreement shall terminate
without further action by the parties on February 16,
1998 if the conditions set forth in Sections 6.1, 6.2,
6.3, 6.4, 6.5 or 6.10 have not been satisfied by the
parry obligated to satisfy such conditions or waived by
the party entitled to waive such conditions, each party
shall have no further duty or obligation to the other
hereunder.
(b) BREACH. If DuPont or Multitrade materially breaches this
Agreement and does not cure such breach within thirty
(30) days of receipt from the non-breaching party of a
notice of such material breach, the non-breaching party
may terminate this Agreement (and if the non-breaching
party is Multitrade, Multitrade may discontinue
provision of the Multitrade Services hereunder) at any
time thereafter upon sixty (60) days prior written
notice to the breaching party; provided, however, that
in the case of a material breach that cannot with
reasonable diligence be cured within a period of sixty
(60) days, and provided further that the breaching party
shall proceed as promptly as possible after receipt of
such notice to cure the breach and thereafter to
prosecute the curing of such breach diligently and
continuously, expeditiously developing and thereafter
reporting regularly to the other upon the cure plan, the
period of time after receipt of such notice within which
to cure the breach shall be extended for such period as
may be necessary to cure the breach with reasonable
diligence, but in no event for a period longer than one
hundred eighty (180) days after such notice. In the
event of a termination under this Section 13.2(b) as a
result of a breach by DuPont, DuPont shall pay a
Termination Payment as provided in Section 13.3.
(c) NON-PAYMENT. If DuPont fails to pay Multitrade any
amount due hereunder on the date payment of such amount
is required, Multitrade may, upon thirty (30) days
notice to DuPont, and in the event payment is not made
within such thirty (30) days, discontinue provision of
the Multitrade Services and terminate this Agreement. In
the event of a termination under this Section
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13.2(c), DuPont shall pay a Termination Payment as
provided in Section 13.3.
(d) GROUND LEASE. Multitrade may discontinue provision of
the Multitrade Services hereunder and terminate this
Agreement in the event of a material breach or
termination of the Ground Lease by DuPont or the failure
of the Ground Lease to be in full force and effect. In
the event of a termination under this Section 13.2(d),
DuPont shall pay a Termination Payment as provided in
Section 13.3.
(e) AIR PERMIT. If the Air Permit shall have been modified,
revoked, canceled or suspended, or proceedings shall
have been commenced under any Applicable Law for the
modification, revocation, suspension or cancellation of
the Air Permit, then, provided that no such event is
caused by the negligence of Multitrade to comply with
the terms of the Air Permit, Multitrade may discontinue
provision of the Multitrade Services hereunder and
DuPont shall pay a Termination Payment as provided in
Section 13.3.
(f) CONDEMNATION. If any event described in Section 17 of
the Ground Lease shall occur, Multitrade may, on thirty
(30) days notice to DuPont, terminate this Agreement. In
such event Multitrade may discontinue provision of the
Multitrade Services hereunder and DuPont shall pay a
Termination Payment as provided in Section 13.3.
13.3 TERMINATION EFFECTIVENESS; TERMINATION PAYMENT. (a) For
purposes of calculating any Termination Payment hereunder and the amount to be
paid pursuant to Section 8 hereof, if not otherwise the case, all terminations
under this Agreement shall be effective on the last calendar day of the month in
which such notice would otherwise be effective hereunder.
(b) DuPont and Multitrade acknowledge and agree that any termination
of this Agreement or the Ground Lease shall directly cause damage to Multitrade
in an amount and to an extent as cannot be calculated presently with reasonable
certainty. As damages for such a breach and termination, DuPont hereby agrees to
pay Multitrade, within thirty (30) days after such a termination, as liquidated
damages and not as a penalty, an amount equal to the Termination Payment. In the
event of such termination, no discontinuation of the Multitrade Services by
Multitrade shall render Multitrade liable for damages or relieve DuPont from
performance of its obligations hereunder.
13.4 SURVIVAL. The obligations of the parties under Sections 10, 12,
13.3, 13.4 and this 13.5 and Section 23 of the Ground Lease shall survive any
termination of this Agreement.
13.5 NO LIMITATION. The terms of this Section 13 shall not limit any
other remedies available to Multitrade under this Agreement, the Ground Lease or
applicable law.
-14-
SECTION 14. MISCELLANEOUS
14.1 AMENDMENT; ENTIRE AGREEMENT. This Agreement contains the entire
understanding of the parties and supersedes all prior negotiations and oral
understandings, if any, including the Letter of Intent dated December 15, 1997
between the parties (other than clause 7 thereof). This Agreement may not be
amended, supplemented or modified except by a written instrument signed by the
parties hereto.
14.2 ASSIGNMENT AND DELEGATION. (a) Except as provided in Section
14.2(b), neither party may voluntarily assign all or any portion of its rights,
nor delegate its duties, under this Agreement, without the written consent of
the other party, whose consent shall not be unreasonably withheld, except in
connection with an assignment to a lender or lenders of its right, title,
interests, powers and benefits under this Agreement, as security for a loan. Any
such assignment or delegation made without such written consent pursuant to this
Section 14.2 shall be void and ineffective.
(b) DuPont may assign its rights and obligations hereunder (i)
without Multitrade's consent but subject to prior written notice to Multitrade,
to a subsidiary or affiliate of DuPont, (ii) with Multitrade's prior written
consent, whose consent shall not be unreasonably withheld, to a third party
whose credit standing is reasonably acceptable to Multitrade.
(c) If DuPont or its permitted successors shall transfer, sell,
assign, convey or otherwise dispose of either or both of the Sites or the
Martinsville Plant (including without limitation in the case of (b)(i) or (ii),
above) such disposition shall be subject to the express condition that the
transferee, assignee, purchaser or recipient of such conveyance or disposition
shall assume all obligations of DuPont to be performed under this Agreement and
the Ground Lease. In such event, DuPont or such other assignor shall be relieved
of all further liability under this Agreement from and after the date of such
transferee, assignee, purchaser or recipient's assumption of such obligations of
DuPont or such assignor, as the case may be, as provided above.
14.3 BINDING EFFECT; SUCCESSOR AND ASSIGNS. The terms and provisions
of this Agreement and the respective rights and obligations hereunder of
Multitrade and DuPont shall be binding upon, and inure to the benefit of their
respective permitted successors and assigns.
14.4 INDEPENDENT CONTRACTOR. Multitrade is entering into this
Agreement and the Ground Lease and shall perform hereunder and thereunder as an
independent contractor and neither Multitrade nor DuPont shall be deemed in any
way or for any purpose, by nature of this Agreement, the Ground Lease or
otherwise, a partner, joint venturer, agent, employer or employee of the other.
14.5 CHOICE OF LAW. This Agreement and any dispute arising here from
shall be governed and interpreted in accordance with laws of the State of
Virginia as applied to contracts made and wholly performed within said state.
14.6 SECTION HEADINGS AND SUBHEADINGS. All Section headings and
subheadings are inserted for convenience only and shall not affect any
construction or interpretation of this Agreement.
-15-
14.7 SEVERABILITY. In the event that any provision of this Agreement
becomes or is declared by a court of competent jurisdiction to be illegal,
unenforceable, or void, this Agreement shall continue in full force and effect
without said provision; provided that no such severability shall be effective if
it materially changes the economic benefit of this Agreement to either party.
14.8 NOTICE. Except as otherwise specifically provided for in this
Agreement, all notices or other communications required or permitted hereunder
will be in writing and deemed given (a) if delivered personally, (b) if sent by
facsimile copy and receipt thereof is confirmed, or (c) if (i) deposited in the
U.S. mail, registered mail, postage prepaid, return receipt requested or (ii)
delivered to a nationally recognized express mail service which requires a
receipt from the recipient, and, in either case, a receipt is obtained, and (d)
in any case addressed as follows:
TO MULTITRADE: TO DUPONT:
------------- ---------
Multitrade Group, Inc. ▇.▇. ▇▇▇▇▇▇ DeNemours & Co.,
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇.
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ One DuPont Road
Attn: Mr. B.E. Brammer ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
CEO and Chairman Attn: Plant Manager
Tel: ▇▇▇-▇▇▇-▇▇▇▇ Tel: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇
Such addresses and personnel designations may be changed from time to time by
either party by serving written notice as provided above.
-16-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the date first above written.
MULTITRADE GROUP, INC.
By: /s/ B.E. Brammer
-----------------------------
Name: B.E. Brammer
Title: Chairman and CEO
▇.▇. ▇▇▇▇▇▇ DE NEMOURS & CO.
By: /s/ S.A. Hamden
-----------------------------
Name: S.A. Hamden
Title: Director - Global Servicing
EXHIBIT 4.1
STEAM METER LOCATION AND SYSTEM
INTERCONNECTION POINTS LOCATIONS
The Steam Meter shall be located within the System on the steam main
that intra-connects to the Martinsville Plant's existing steam system. The Steam
Meter shall have sufficient straight piping, in and out, as recommended by the
Steam Meter manufacturer.
Multitrade shall inter-connect the System to the Martinsville
Plant's existing system at the existing 10" valve located on the 550 psi steam
header. The existing 10" valve and header is located on the operating floor
level near the shop wall to the east and the southern boiler plant wall.
EXHIBIT 4.2
METHOD OF ADJUSTING STEAM INVOICE
TO COMPENSATE FOR MALFUNCTIONING STEAM METER
(No Adjustment for one percent plus or minus of correct reading.)
STEP 1. Determine percentage meter error, either plus or minus, from
calibration by independent technician.
STEP 2. Total the volume of steam purchased by the Purchaser from the time
of previous calibration to the time the meter was determined to be
inaccurate. Example: If an October calibration indicated meter was
2% in error-total steam usage from previous calibration through the
month of October.
STEP 3. Multiply the total steam consumed by DuPont (the sum of STEP 2)
by the percentage of meter error, less the one percent plus or
minus dead band.
STEP 4. Determine the average sale price of steam to DuPont during the
period in question.
STEP 5. Multiply the product of STEP 3 by the average price determined in
STEP 4.
STEP 6. Multiply the product of STEP 5 by 50% and the result equals the
total credit or debit.
EXAMPLE:
September, 1999, calibration indicated three percent "plus" steam reading.
Previous calibration accomplished March, 1999.
STEP 1. Plus three percent (3%) meter reading
STEP 2. 34,495,000 Sept. 1999
36,257,200 Aug. 1999
27,172,400 July, 1999
35,243,659 June, 1999
39,148,699 May, 1999
35,248,489 April, 1999
----------
207,665,647 Total Lbs.
STEP 3. Sum of STEP 2: 207,665,647
Total from STEP 1
Less 1% Dead Band: x 2% (3% error - 1% Dead)
-------------
4,153,313 MLbs.
STEP 4. Average Price for Steam:
$ 5.40 Sept. 1999
5.49 Aug. 1999
5.55 July 1999
5.47 June 1999
5.37 May 1999
5.43 April 1999
----
$32.71 divided by 6 = $5.45 avg. price per 1000 lbs.
STEP 5. Product of STEP 3: 4,153,313 MLbs.
Total from STEP 4: x $5.45 per MLbs.
---------
$22,635.66
STEP 6. Product of STEP 5: $22,635.66
x 50%
---------
($11,317.78) Net(credit) or debit
EXHIBIT 6.6
CONDENSATE RETURN PARAMETERS
Parameter Maximum Limit
---------------------- ---------------------
Total Hardness 1.0 parts per million
Sodium .1 parts per million
Silica .2 parts per million
Conductivity 100 micromos
Total Iron .05 parts per million
Total Copper .02 parts per million
Total Organic Carbon Non Detectible
pH 6.5 - 8.0 Range
EXHIBIT 13.3
TERMINATION PAYMENT SCHEDULE
EFFECTIVE DATE OF TERMINATION EFFECTIVE DATE OF TERMINATION
TERMINATION PAYMENT TERMINATION PAYMENT
PRIOR TO 7-31-98 $1,287,751 1-31-2001 $879,751
7-31-98 $1,287,751 2-28-2001 $864,701
8-31-98 $1,275,420 3-31-2001 $849,550
9-30-98 $1,263,008 4-30-2001 $834,298
10-31-98 $1,250,512 5-31-2001 $818,945
11-30-98 $1,237,934 6-30-2001 $803,489
12-31-98 $1,225,271 7-31-2001 $772,268
8-31-2001 $756,501
1-31-99 $1,212,254 9-30-2001 $740,629
2-28-99 $1,199,692 10-31-2001 $724,651
3-31-99 $1,186,775 11-30-2001 $708,567
4-30-99 $1,173,771 12-31-2001 $692,375
5-31-99 $1,160,681
6-30-99 $1,147,503 1-31-2002 $676,075
7-31-99 $1,134,238 2-28-2002 $659,667
8-31-99 $1,120,884 3-31-2002 $643,149
9-30-99 $1,107,441 4-30-2002 $626,522
10-31-99 $1,093,909 5-31-2002 $609,783
11-30-99 $1,080,286 6-30-2002 $592,933
12-31-99 $1,066,573 7-31-2002 $575,970
8-31-2002 $558,895
1-31-2000 $1,052,768 9-30-2002 $541,705
2-29-2000 $1,038,871 10-31-2002 $524,401
3-31-2000 $1,024,881 11-30-2002 $506,982
4-30-2000 $1,010,798 12-31-2002 $489,446
5-31-2000 $996,621
6-30-2000 $982,350 1-31-2003 $471,794
7-31-2000 $967,984 2-28-2003 $454,024
8-31-2000 $953,522 3-31-2003 $436,135
9-30-2000 $938,963 4-30-2003 $418,127
10-31-2000 $924,307 5-31-2003 $400,000
11-30-2000 $909,554
12-31-2000 $894,702
AMENDMENT NO. 1 TO STEAM SUPPLY AND OPERATING AGREEMENT
AMENDMENT NO. 1, DATED FEBRUARY 20, 1998 (THIS "AMENDMENT") TO STEAM
SUPPLY and OPERATING AGREEMENT, dated February 11, 1998 (the "Agreement"),
between MULTITRADE GROUP, INC., a Virginia corporation ("Multitrade") and ▇.▇.
▇▇▇▇▇▇ DE NEMOURS & CO., a Delaware corporation ("DuPont").
WHEREAS, the parties to this Amendment have entered into the
Agreement and wish to amend certain terms of the Agreement, as specified herein;
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual agreements hereinafter set forth to be kept and performed, the parties
hereto agree as follows:
1. AMENDMENT TO SECTION 1 (DEFINITIONS)
Section 1 of the Agreement is amended to include the following text
at the end of such section:
References to an agreement, document or Applicable Law mean such
agreement, document or Applicable Law as the same may be amended,
modified or supplemented from time to time.
2. AMENDMENT TO SECTION 6.5 (MARTINSVILLE PLANT)
The following sentence is added to Section 6.5 as a second
sentence:
For all purposes of this Agreement and the Ground Lease.
DuPont, at all times during the Term, shall be deemed to have
and retain sole control of the Martinsville Plant and all
equipment therein.
3. AMENDMENT TO SECTION 10 (INDEMNIFICATION AND LIMITATIONS OF
LIABILITY)
(a) The term "System Site" in the thirteenth line of Section 10.1
shall be deleted and replaced by the phrase "System Site or Leased
Premises, as the case may be,"
(b) Each occurrence of the term "Condensate Return System" in
Section 10.2 shall be deleted and replaced by the phrase "Martinsville
Plant".
4. AMENDMENT TO SECTION 14 (MISCELLANEOUS)
(a) The following sentence is added to Section 14.1 as a third
sentence;
In the event of any conflict or inconsistency between this
Agreement and the Ground Lease, the terms of this Agreement
shall govern.
(b) The following is added to Section 14.8 below the notice
address for Multitrade:
Or, if by courier to:
Multitrade Group, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Mr. B.E. Brammer
CEO and Chairman
5. MISCELLANEOUS
(a) All references to the Agreement, whether in the Agreement or
elsewhere, shall mean the Agreement as amended by this Amendment. Except
as amended hereby, the terms and conditions of the Agreement remain in
full force and effect.
(b) The terms and provisions of Section 12 (Arbitration of Disputes;
Attorney's Fees), Section 14.1 (Amendment; Entire Agreement), Section 14.5
(Choice of Law), Section 14.7 (Severability) and Section 14.8 (Notices)
shall each be incorporated into and apply to this Amendment as if set
forth in full herein.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed as of the date first above written.
MULTITRADE GROUP, INC.
By: /s/ B.E. Brammer
-------------------------------------
Name: B.E. Brammer
Title: Chairman & CEO
▇.▇. ▇▇▇▇▇▇ DE NEMOURS & CO.
By: /s/ G. ▇▇▇▇▇▇▇ ▇▇▇▇
------------------------------------
Name: G. ▇▇▇▇▇▇▇ ▇▇▇▇
Title: Energy Sourcing Manager