DISTRICT COOLING SYSTEM USE AGREEMENT CITY OF CHICAGO, ILLINOIS AND NORTHWIND INC.

Exhibit 10.25

DISTRICT COOLING SYSTEM USE AGREEMENT

CITY OF CHICAGO, ILLINOIS

AND

NORTHWIND INC.

TABLE OF CONTENTS

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EXHIBITS

Exhibit 1     Location Description, Including Initial Distribution System

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     This District Cooling System Use Agreement (the “Agreement”), made and executed as of this 1st day of October, 1994 (the “Effective Date”) by and between the CITY OF CHICAGO, Illinois (the “City”), a home rule unit and municipality under Article VII of the Constitution of the State of Illinois and NORTHWIND INCORPORATED, an Illinois corporation (the “Grantee”) and a wholly owned subsidiary of CECo Enterprises, a corporation (“CECo”):

WITNESSETH

     WHEREAS, Section 6(a) of Article VII of the Illinois Constitution provides that a home rule unit “may exercise any power and perform any function pertaining to its government and affairs included, but not limited to, the power to regulate for the protection of the public health, safety, morals, and welfare. . . .”; and

     WHEREAS, various persons are applying to the City to provide “District Energy Systems” wherein multiple buildings in a specified area or “District” are provided with thermal energy (e.g. steam or hot or chilled water) from a central facility; and

     WHEREAS, it is the policy of the City of Chicago (the “City”) to encourage the development of economic energy options in the City, including District Energy Systems; and

     WHEREAS, the City’s policy regarding District Energy System is to advance the following goals:

     WHEREAS, Grantee wishes to construct and operate in the City a “District Cooling System” (as hereafter defined; and

     WHEREAS, in order to construct and operate its District Cooling System, Grantee must construct and install “Distribution Facilities” (as hereafter defined) in certain of the “Public Ways” (as herein defined) of the City; and

     WHEREAS, the City and the Grantee have reached an agreement as to the terms under which Grantee will be permitted to use certain portions of the Public Ways of the City to construct, install and maintain its Distribution System; and

     WHEREAS, Grantee’s District Cooling System has the potential to enhance the City’s competitiveness and growth by facilitating efficient energy use, by encouraging a competitive market for energy services, by promoting a cleaner environment, and by meeting environmental regulation requirements;

NOW, THEREFORE,

     It is hereby agreed by the parties hereto as follows:

     SECTION 1. DEFINITIONS

     “Additional Distribution Facilities” shall mean Distribution Facilities associated with Approved Plants approved subsequent to the First Plant.

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     “Adjustment Dates” shall mean January 1, 2000, January 1, 2005, and January 1, 2010.

     “Affiliate”, with respect to any entity, shall include any subsidiary or parent or intermediary corporation of such entity or any entity which is under control of a parent, subsidiary or intermediary of such entity or any other entity which is capable of exercising a substantial degree of control over such entity through ownership of stock or partnership interests in such entity. The term “control” shall mean the right to exercise directly or indirectly the voting rights or the power to direct or cause the direction of management policies of the controlled or intermediary entity. In the case of tax-exempt organizations, the term “Affiliate” shall also include tax exempt organizations which are related for purposes of unrelated business income determinations made in accordance with sections 511 through 514 of the Internal Revenue Code and corresponding regulations, case law and Internal Revenue Service rulings.

     “Approved Plant” shall mean a Plant which has been approved as to location and nature by ordinance of the City Council as part of a planned development or other similar process and all applicable permits and approvals under this Agreement the Code and under regulations established by the City pursuant to its district heating and cooling policy, have been received. Grantee’s first Approved Plant was approved by ordinance dated March 23, 1994 and is described in Exhibit 1 (“First Plant”).

     “Freight Tunnels” shall mean the freight tunnels running below certain streets of the City.

     “City” shall mean the City of Chicago, Illinois acting through its Department of Environment or its successor, except as otherwise noted.

     “City Council” shall mean the City Council of Chicago.

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     “Code” shall mean the Municipal Code of Chicago (1990), as amended from time to time.

     “Compensation Year” shall be a twelve-month period during the term on the Agreement beginning on January 1 and ending on December 31 provided that the first Compensation Year shall begin on the effective date of this Agreement and end on December 31, 1995.

     “Contractor” shall mean collectively any contractor, subcontractor, agent or consultant employed by Grantee or an Affiliate to construct, install, operate or maintain Grantee’s District Cooling System or any part thereof. A Contractor may be an Affiliate.

     “Distribution Facilities” shall mean the conduits and associated production and distribution pipeline equipment, conduits, fixtures and other instrumentalities and appurtances to be installed and constructed by Grantee pursuant to the terms of this Agreement in the Public Ways for the purpose of providing district cooling chilled water and related air conditioning to Grantee’s customers. The Distribution Facilities collectively includes the Initial Distribution Facilities and Additional Distribution Facilities.

     “District Cooling Services” or “Services” shall mean the provision of localized cooling services and related air conditioning to customers by the supply of chilled water through a District Cooling System.

     “District Cooling System” for purposes of this Agreement shall mean collectively all Approved Plants and Distribution Facilities used by Grantee to provide district cooling chilled water and related air conditioning service generated by an Approved Plant(s) to its customers within the City on a contractual basis. A District Cooling System is a type of District Energy System.

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     “District Energy System” shall mean a heating and/or cooling system which uses thermal energy (hot or chilled water) from a central plant to service multiple buildings in an area.

     “General Compensation” shall mean amounts Grantee is required to pay to the City pursuant to Section 5.1 of this Agreement.

     “Grantee” shall mean Northwind Incorporated, a wholly owned subsidiary of CECo Enterprises.

     “Initial Distribution Facilities” shall mean the Distribution Facilities associated with the First Plant, as described in Exhibits 1 and 2, subject to amendment as set forth in Section 7.1.1.

     “Minimum Annual Fee” shall mean the minimum amount payable, calculated on the basis of a twelve-month period, to the City as General Compensation during any Compensation Year pursuant to Section 5 hereof.

     “Ordinance” shall mean the ordinance adopted on    by the City Council authorizing execution of this Agreement.

     “Plant” shall mean a chilling plant and/or ice production plant that produces the chilled water transmitted or distributed through the Distribution Facilities to provide the Services.

     “Public Ways” shall mean the surface, the air space above the surface and the area below the surface of any right-of-way and public street and any highway, lane, path, alley, sidewalk, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇▇, waterway or other public right-of-way including public utility easements or rights-of-way in which the City has jurisdiction, and any temporary or permanent fixtures or improvements located thereon now or hereafter held by the City in which

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the City holds rights sufficient, without consent of any other party, to permit Grantee the use thereof for the purpose of installing or maintaining Grantee’s District Cooling Facilities. The term “Public Ways” shall be deemed not to include the Chicago Freight Tunnels except as specifically referred to herein.

     “Total Gross Billings” shall mean the sum of (1) all amounts billed by Grantee and/or due to Grantee to be paid in cash, credits or property of any kind or nature arising from or attributable to, directly or indirectly, or in any way derived from, Grantee’s operation, lease, exchange or use of its District Cooling System from all Approved Plants, or sale or lease of District Cooling System within the City, whether or not such amounts are actually collected and (2) any other revenue arising from the possession by Grantee of its rights under this Agreement. If Grantee does not ▇▇▇▇ a particular customer (including an Affiliate of Grantee) for Services provided by Grantee, then there shall be imputed as ▇▇▇▇▇▇▇▇ included within Total Gross Billings an amount equal to the ▇▇▇▇▇▇▇▇ that would have been billed by Grantee to a like customer for the provision of Services identical or as closely similar as possible in usage and nature to the Services being provided to the customer not being billed. If Grantee does not ▇▇▇▇ itself for Services provided for its own internal use beyond the use needed for operation of Grantee’s District Cooling System, there shall be imputed as ▇▇▇▇▇▇▇▇ included within Total Gross Billings, the amount that would have been billed to a like customer for Services identical or as closely similar in nature and usage as possible to the Services being so used by Grantee. No expenses or allowances shall be deducted from Total Gross ▇▇▇▇▇▇▇▇. Total Gross Billings shall include only amounts related solely to Grantee’s Chicago-based operations.

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     SECTION 2. GRANT OF RIGHTS

     Section 2.1 Grant of Rights. The City hereby grants to Northwind, Inc, as Grantee, the non-exclusive right to construct, install, repair, operate, and maintain a District Cooling System consisting of one or more Approved Plants and associated Distribution Facilities in Chicago on the terms and conditions set forth herein; provided, however, that no work on a Plant may commence until it is an Approved Plant and all applicable procedures and permits required under this Agreement and the Code have been met; and provided further that no Additional Distribution Facilities may be constructed or installed in the Public Ways until this Agreement has been amended pursuant to City Council authorization to incorporate such Additional Distribution Facilities as set forth in Section 7.1.2. This Agreement does not contemplate use by Grantee of the Freight Tunnels. Should Grantee wish to use any part of the Freight Tunnels for its District Cooking System, the provisions of Section IX shall govern. This Agreement does not permit the lease of Grantee’s System or any part thereof except as permitted in this Agreement.

     Section 2.2 Term and Initial Expiration Date. Subject to the survival of certain rights of the City to be indemnified and to have Grantee’s District Cooling System removed and the Public Ways restored as set forth in this Agreement, the term of this Agreement shall commence on the Effective Date and shall terminate, unless extended or renewed as provided herein, on December 31, 2015 (the “Initial Expiration Date”).

     Section 2.3 Right of Renegotiation of Certain Provisions.

     2.3.1 Adjustments to Compensation. The City reserves the right to modify or to renegotiate the amount, nature and terms of General Compensation to be paid by Grantee for use of the Public Ways during the term of this Agreement. Except as provided in Section 2.3.2, any

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adjustment to General Compensation (“Adjusted Compensation”) shall become effective on the next succeeding Adjustment Date. In order to renegotiate General Compensation, the City shall give written notice to Grantee at least one hundred twenty (120) days prior to the Adjustment Date for which the Adjusted Compensation will become effective. Said notice shall contain the City’s proposed schedule of Adjusted Compensation. Grantee shall be given a reasonable opportunity to discuss an increase in General Compensation with the Director of the Department of Revenue. The terms of any such Adjusted Compensation shall be reflected in an amendment to this Agreement and shall be fair and reasonable. No such Adjusted Compensation may reduce the rate of General Compensation to be paid by Grantee without the approval of the City Council. No such Adjusted Compensation shall increase the compensation to be paid by Grantee to more than four percent of its Total Gross Billings. No later than sixty (60) days prior to each Adjustment Date, the Director of the Department of Revenue shall notify the Chairman of the Committee of the City Council having jurisdiction over the use of and compensation for the Public Ways regarding the status of any renegotiation and the proposed schedule of Adjusted Compensation.

     2.3.2 Dispute Resolution. Except as set forth in Section 2.3.1, Grantee shall not challenge any increase in Adjusted Compensation up to and including three percent (3%) of Grantee’s Total Gross Billings. If the amount of proposed Adjusted Compensation exceeds three percent (3%) of Grantee’s Total Gross Billings, and if Grantee shall in faith maintain that the amount of any Adjusted Compensation in excess of such three percent (3%) proposed by the City pursuant to Section 2.3.1 is excessive or unreasonable, given the value of the privileges granted to Grantee pursuant to this Agreement, Grantee shall enter into negotiations with the City as expeditiously as possible to reach an agreement as to Adjusted Compensation prior to the

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applicable Adjustment Date. In the event that an agreement as to proposed Adjusted Compensation over 3% of Total Gross Billings is not reached within 90 days, Grantee shall have the right to make a demand for arbitration in writing to the City within thirty (30) days after such Adjustment Date. If no such demand is timely made, the proposed Adjusted Compensation shall become effective, retroactively from the proposed Adjustment Date. In the event of a timely demand for arbitration, the City and Grantee shall each appoint an arbitrator and a third arbitrator shall be appointed by the arbitrators so appointed. Each arbitrator shall have at least five years of experience in the field of rights-of-way or land valuation Pursuant to the then current rules of the American Arbitration Association, or any successor organization, an arbitration shall be held as expeditiously as possible.

     Unless the majority of the arbitrators shall conclude that such Adjusted Compensation is excessive or unreasonable, Grantee shall be bound to pay the Adjusted Compensation, retroactive to the applicable Adjustment Date. If a majority of the arbitrators shall decide such Adjusted Compensation is excessive or unreasonable, then the City shall withdraw the proposed schedule of Adjusted Compensation and Grantee shall pay the greater of 3% of Total Gross Billings or the rate of General Compensation previously in effect; provided that the City may substitute a new rate of Adjusted Compensation, retroactively effective to the applicable Adjustment Date. The notice periods and dispute resolution procedures of this Section 2.3.2 shall be applied to the extent possible to any substituted Adjusted Compensation. Notwithstanding anything to the contrary in this Section 2.3.2, however, Grantee shall be bound by any arbitration decision rendered by a similar panel of arbitrators regarding the same proposed Adjusted Compensation as would be applicable to Grantee for similar privileges; provided that Grantee shall have been given due notice and a full and fair opportunity to

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participate in such arbitration proceedings and to give evidence therein. Failure by Grantee to object to the City’s proposed Adjusted Compensation within the time provided in this Section 2.3 shall act as a waiver and Grantee shall be obligated to pay or provide, as the case may be, the Adjusted Compensation from the applicable Adjustment Date.

     Section 2.4 Interim Extension in the Absence of Default or Termination. If, on the Initial Expiration Date, Grantee shall not be in default under this Agreement and if neither party has notified the other of its intent to terminate this Agreement on or before the Expiration Date, then the terms of this Agreement shall be deemed extended on an interim basis until terminated, renewed or renegotiated. Said interim extension period shall not extend beyond a date sixty (60) days after the Initial Expiration Date, after which date this Agreement shall be considered terminated and all rights of the Grantee to use the Public Ways to provide the Services shall cease; provided however that the City may extend this Agreement at its sole option for two consecutive one-year periods.

     Section 2.5 Renewal. At any time during the last Compensation Year occurring prior to the Initial Expiration Date, Grantee may request the City to enter into negotiations toward renewing or extending this Agreement. The exercise by Grantee of this option shall not bind the City as to acceptance of any particular terms or renewal of the rights granted by this Agreement, if the City determines such terms or the renewal of this Agreement is not in the best interests of the City. Any proposed renewal, extension or modification of this Agreement is subject to City Council approval, modification, or rejection in its sole discretion.

     Section 2.6 Acts or Omissions of Affiliates and Other Entities. During the term of this Agreement, Grantee shall be liable to the City for the acts or omissions of any entity used by

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Grantee (including an Affiliate) when such entity is involved directly or indirectly in the construction, installation, maintenance, or operations of Grantee’s District Cooling System or the provision of Services as if the acts or omissions of such entity were the acts or omissions of Grantee.

     SECTION 3. NATURE OF LIMITATION OF RIGHTS GRANTED

     Section 3.1 Rights Not Exclusive. This is a nonexclusive grant to use the Public Ways and is made expressly subject to and subordinate to the right of the City to use the Public Ways for any public purpose.

     Section 3.2 Other Permittees. This grant is nonexclusive and the City does not agree to restrict the number of franchises, licenses, use agreements or permits of any kind in all or any part of the City, including, but not limited to, such arrangements made regarding other District Energy Systems or providers of Services. The grant and authority herein granted are not intended to limit or modify any franchise, license or permit previously granted by the City to any other occupant of the Public Ways. Therefore, the Grantee, recognizing the rights of other franchisees, licensees and permittees in the Public Ways, shall exercise the grant and authority herein granted in such a manner as not to interfere unreasonably with the rights of other prior or future franchisees, licensees and permittees in the Public Ways and to act so as not to endanger or to impair the facilities of any other such franchisee, licensee, or permittee. Prior and future franchisees, licensees, or permittees shall also, in like manner, be required to respect the rights and not interfere with the rights of the Grantee herein.

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     Section 3.3 City’s Rights Over Public Way.

     3.3.1 City’s Authority is Paramount. Grantee acknowledges and accepts at its own risk that the City may make use in the future of the Public Ways in which Grantee’s District Cooling System or any portion thereof is located in a manner inconsistent with Grantee’s use of thereof.

     3.3.2 Removal and Relocation. The City reserves the right to exercise its police and/or proprietary powers, to modify, vacate, or transfer what is now the Public Way for a public purpose. At Grantee’s own risk, the City has a predominant right to use the Public Ways in the placement, maintenance, and repair of sewers, water mains, telecommunications and other utility facilities or to require that Grantee relocate or remove any part of the District Cooling System where the City determines public convenience would be enhanced or for any other public purpose, including but not limited to the use of the Public Ways for public transportation purposes. The permit referred to in Section 13.1 may be amended or revoked in whole or in part by the Commissioner of the Department of the Environment, in consultation with the Commissioner of the Department of Transportation, should such Commissioner consider it necessary or advisable for a public purpose or that the continued operation of Grantee’s Distribution System in whole or part would be injurious with the public health or safety. Grantee shall make no claims for costs or damages against the City by reason of such removal or relocation. Upon thirty (30) days written notice to Grantee of partial or complete revocation of permit from the Commissioner the Department of the Environment, Grantee shall remove, modify, replace, or relocate its facilities as required at its own expense. In the event that Grantee shall not remove, modify, replace, or relocate its facilities as required by said notice within thirty (30) days as aforesaid, the Commissioner of the Department of the Transportation may cause the same to be done at Grantee’s expense and all expenses incurred or damages paid by the City on

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account of such action shall be paid by Grantee on demand. In the event the City exercises its predominant right to use any part of the Public Way for a public purpose, the City shall reasonably cooperate with Grantee in finding an alternate site for any facilities comprising a part of the Distribution Facilities which are removed and in avoiding disruption to Grantee’s District Cooling System or Services to the extent such disruption is not reasonably required. In an emergency, as determined by the City, the City may order Grantee to remove, relocate or deactivate its facilities within forty-eight (48) hours.

     3.3.3 Grantee shall, in coordination with the City’s police and fire departments, establish standard operating procedures for emergency situations. Grantee shall maintain adequate local offices to provide repairs and maintenance services and personnel available to address both concerns arising during normal business hours and 24 hour emergency service. The City shall be informed as to the location and telephone number of Grantee’s regular office and of its emergency representative. Wherever, in case of fire or other disaster, it becomes necessary in the judgment of the City to remove or to take action which results in damage to any of Grantee’s District Cooling System, no charge shall be made by Grantee against the City for restoration and repair.

     3.3.4 Temporary Removal. At the request of any person holding a valid building permit issued by the City and upon reasonable notice, depending on the circumstances, but not, in any case, exceeding thirty (30) days (unless Grantee shall reasonably demonstrate to the City that more than thirty (30) days shall be required, in which case, such longer period as the City may reasonably determine) Grantee may temporarily raise, lower, or remove its pipes as may be necessary for the performance of the work so permitted, subject to payment in advance to the

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Grantee of the direct and indirect expenses of such temporary move by the permit holder, including standby time.

     Section 3.4 No Burden on Public Ways. Grantee shall not attempt to construct, or install, its Distribution System in such a fashion as to unduly burden the present or future use of the Public Ways or to exclude other present or future users of the Public Ways, including, but not limited to, other District Energy Systems or providers of Services. In designing its Distribution System, Grantee shall not provide for conduit space in excess of Grantee’s present or reasonably anticipated future needs, based upon Grantee’s business plan which shall be submitted to the City prior to the issuance of any permit pursuant to Section 13.1. Such business plan shall include a list of current and reasonably anticipated customers of the Services, together with copies of all available letters of intent. The Commissioner of the Department of Environment, in consultation with the Department of Transportation, is authorized to regulate the size of the Distribution System to be used by Grantee in the Public Way. In the event that the City shall determine that any portion of Grantee’s District Cooling System, either planned or constructed, unduly burdens any portion of the Public Ways for present or future use, Grantee shall be required either to modify its plans for construction of its Distribution System, or to take such actions as the City shall determine for the sake of public convenience to eliminate the problem within the time provided by the City and the Code.

     Section 3.5 Police Power.

     (a)The City expressly reserves, and the Grantee expressly recognizes, the City’s right and duty to adopt, from time to time, in addition to the provisions herein contained, such ordinances, rules and regulations as the City may deem necessary in the exercise of its police

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power, provided that such ordinances, rules or regulations shall be reasonable and not unconstitutionally in conflict with the rights granted in this Agreement.

     (b)The City, by the granting of this Agreement, does not surrender or to any extent lose, waive, impair or lessen the lawful powers and rights now or hereafter vested in the City under the Constitution and statutes of the State of Illinois and under the Code. Grantee, by its acceptance of this Agreement agrees that all lawful regulatory powers and rights, as may be from time to time vested in the City, shall be in full force and effect and subject to the exercise thereof by the City, at any time from time to time. The exercise of these lawful powers and rights shall not unconstitutionally conflict with the rights granted in this Agreement.

     Section 3.6 Furnishing of Information. Grantee shall furnish to the City’s Department of Revenue, such information as may be required at such times by such Department (including customer lists, if so required), to effect compliance by Grantee and Grantee’s customers with any ordinances of the City of Chicago which shall be in effect from time to time regulating, taxing or otherwise concerning Grantee’s operation of its District Cooling System pursuant to this Agreement. Grantee also specifically acknowledges its duty and obligation to comply with the ordinances of the City, including any ordinances that require the payment or collection of any City tax, or the obtaining of any City licenses. Breaching the provisions of this section 3.6 shall be a default under this Agreement.

     SECTION 4. CHANGE OF CONTROL, ASSIGNMENT, AND SUBLEASE

     Section 4.1 Change of Control

     4.1.1 Privilege is Personal to Grantee. The rights granted pursuant to this Agreement shall be a privilege to be held in personal trust by Grantee. Except as otherwise provided herein,

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Grantee shall not transfer or assign the rights granted in this Agreement or its ownership or operation of its District Cooling System, or any portion thereof through sale, merger, corporate reorganization, consolidation, leaseback or any other manner or transfer or assign in any manner conduit or other space occupied by its District Cooling System, without the prior consent of the City Council expressed by resolution and then only on such conditions as may be therein prescribed. Any sale, transfer or assignment not made according to the procedures set forth in this Section 4 shall void the rights granted by this Agreement. The sale, transfer or assignment in bulk of the major portion of the tangible assets of Grantee shall be considered an assignment subject to the provisions of this Section 4.

     4.1.2 Authorization by City Council. Any sale, transfer or assignment described in Section 4.1.1 authorized by City Council shall be made by a ▇▇▇▇ of sale or similar document, an executed copy of which shall be filed with the Commissioner of the Department of the Environment within thirty (30) days after any such sale, transfer or assignment; provided however, that the assignee must agree to comply with this Agreement and amendments thereto, provide proof of legal, technical, financial, and character qualifications as reasonably determined by the City, and provide disclosure of ownership interests as required by Chapter 2-154 of the Municipal Code of Chicago and provide such other certifications as the City shall determine are required.

     4.1.3 Transfer to Subsidiary. Notwithstanding Section 4.1.1, Grantee may form a wholly owned subsidiary and assign its rights under this Agreement to such subsidiary without prior consent the City Council; provided, however, that Grantee shall provide notice of such assignment and full disclosure to the Commissioner of the Department of the Environment and

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the Corporation Counsel as to the nature of such subsidiary within thirty (30) days of such assignment.

     4.1.4 Transfer of Control of Grantee. Prior approval of City Council, which shall not be unreasonably withheld, shall be required where ownership of fifty percent (50%) or more of the control of Grantee is acquired during the term of this Agreement in any transaction or series of transactions by a person or one or more of persons acting in concert, none of whom owned or controlled fifty percent (50%) or more of the right to control Grantee, singly or collectively on the effective date of this Agreement. By its acceptance of this Agreement, Grantee specifically agrees that any such acquisition occurring without prior approval of the City Council shall void the rights granted under this Agreement. This provision shall apply to any limited partnership wherein fifty percent (50%) or more of the control of Grantee is to be transferred to limited partners or to a general partner which is not Grantee.

     4.1.5 Pledge of Controlling Interests or Assets. Prior City Council approval shall not be required for a transfer or pledge in trust, mortgage, or hypothecation of Grantee’s partnership interests or common stock, as the case may be, or portions of Grantee’s District Cooling System in whole or in part to secure an indebtedness except where such pledge shall involve hypothecation of more than seventy-five (75%) of the fair market value of Grantee’s District Cooling System. Prior consent of City Council shall be required for such pledge or transfer in trust of more than seventy-five (75%) of the fair market value of Grantee’s District Cooling System, as and said consent shall not be withheld unreasonably. Any such pledge or transfer in trust does not imply any right of the pledgee to assume any rights hereunder without City Council approval.

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     4.1.6 Disclosure of Ownership. Grantee must submit to the Department of the Environment, the Economic Disclosure Statement required by Chapter 2-154 of the Code. Grantee, or any assignee permitted hereunder, shall, within thirty (30) days of any such transaction, file an amendment to the foregoing statement of ownership interest with the Department of the Environment in the event ownership of ten percent (10%) of control Grantee is acquired during the term of this Agreement by any person or one or more groups of persons acting in concert after the Effective Date.

(A) Grantee shall furnish to the City’s Department of Revenue, such information as may be required at such times by such Department (including customer lists, if so required), to effect compliance by Grantee and Grantee’s customers with any ordinances of the City of Chicago which shall be in effect from time to time regulating, taxing or otherwise concerning Grantee’s operation of its District Cooling System pursuant to this Agreement which information is proprietary and shall be held confidential subject to Section 14.1. Grantee also specifically acknowledges its duty and obligation to comply with the ordinances of the City, including any ordinances that require the payment or collection of any City tax, or the obtaining of any City licenses. Breaching the provisions of this subparagraph A shall be a default under this Agreement.

     SECTION 5. COMPENSATION

     Section 5.1 General Compensation. Grantee agrees to pay the City as General Compensation during each Compensation Year for the use of the Public Ways throughout the duration of this Agreement (subject to the City’s rights of adjustment set forth in Section 2.3 hereof) a sum equal to the General Compensation as set forth below. The General Compensation during the Compensation Year ending December 31, 1995 shall be the greater of $50,000 or two

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percent (2%) of Grantee’s Total Gross ▇▇▇▇▇▇▇▇. The General Compensation during the Compensation Year ending December 31, 1996 shall be the greater of $70,000 or two percent of Grantee’s Total Gross ▇▇▇▇▇▇▇▇. For each Compensation Year beginning in the 1997 Compensation Year (subject to the City’s rights of adjustment set forth in Section 2.3 hereof and to adjustments made pursuant to Section 7.1.2); the General Compensation fees shall be two percent (2%) of Total Gross ▇▇▇▇▇▇▇▇; but in no case shall the General Compensation for any Compensation Year beginning in 1997 be less than $70,000 (subject to adjustment pursuant to Section 7.1.2), adjusted for the rate of inflation pursuant to the Consumer Price Index for Urban Areas.

     5.1.1 Calculation and Payment on a Monthly Basis. Grantee shall pay to the Director of the Department of Revenue for each month during a Compensation Year an amount equal to the greater of:

     The greater of (a) or (b) above shall be referred to as the “Monthly Payment”. Grantee shall forward by check or money order an amount equal to the Monthly Payment by the fifteenth day of the calendar month immediately following the month for which such Monthly Payment is due. Any necessary prorations shall be made.

     5.1.2 Recalculation at End of Each Compensation Year. At the end of each Compensation Year, Grantee shall recalculate the total General Compensation actually due

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pursuant to Section 5.1 hereof. Such results shall be audited pursuant to Section 5.5.3 hereof. If additional amounts are due the City by Grantee, said amounts shall be paid by the fifteenth (15th) day of the second month of the Compensation Year following the Compensation Year during which such amounts were originally due. If Grantee has overpaid the City, the excess shall be taken as a credit against future compensation due the City pursuant to this Agreement, or if the Agreement is terminated, refunded to the extent such overpayment exceeds amounts due under Section 10.4. Any necessary prorations shall be made. On or before July 1 of each year, Grantee shall provide the City with its best estimates of General Compensation for the following calendar year.

     5.1.3 Not a Tax. Payment by Grantee to the City of the General Compensation and other fees and compensation set forth in Section 5 in this Agreement are compensation for use of the Public ways and shall not be considered in the nature of a tax. Such payments shall be separate from and additional to any and all federal, state, local, and municipal taxes, as may be due, which are separate and distinct obligations of Grantee.

     5.1.4 No Right of Setoff. All payments due to the City from Grantee pursuant to this Agreement shall be paid without counter-claim, setoff, deduction, or defense. In the event Grantee does setoff or deduct any amount from any such payment or otherwise reduces the amount due based on a counterclaim or defense, the City shall have the right to, without incurring any liability to Grantee, its customers or any third person, pursue any and all remedies available to it at law or in equity, including without limitation, revocation of this Agreement and the permit described in Section 11.1.

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     Section 5.2 Most Favored Vendee Status; Favorable City Treatment. During the term of this Agreement, the Grantee shall always treat the City as a “most favored vendee”. In the event that the City shall desire to contract for the purchase, lease, or other use of any Services provided by Grantee, or any affiliate of Grantee, Grantee shall, subject to applicable law, offer the City contract terms and conditions no less favorable (including but not limited to, rate of compensation, warranties, and payment) than the most advantageous terms and conditions offered to and accepted by any of Grantee’s customers on similar or identical transactions. Contracts negotiated with the City for the provision of Services shall be amended to include any more favorable terms included in any other customer’s contract related to rates and discounts.

     Section 5.3 Subsequent Action Affecting Compensation. If during the term of this Agreement any court, agency or other authority of competent jurisdiction takes any action or makes any declaration that adversely affects the legality or collection of the General Compensation or the legality or provision of any other compensation which may be negotiated throughout the term of this Agreement, the City and Grantee shall enter into negotiations to amend this Agreement to make the City whole in a manner consistent with said action or declaration by restoring the City to a position equivalent to that which it held prior to said action or declaration.

     Section 5.4 Other Fees. In addition to and unrelated to the payments of the General Compensation and the provision of the Additional Compensation, Grantee shall pay all fees and deposits necessary to obtain federal, state, local and City licenses, permits and authorizations required for construction, installation, maintenance or operation of its District Cooling System.

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     Section 5.5 Financial Audit.

     5.5.1 Records. (A) Grantee shall maintain accurate, complete and satisfactory books of accounts and records of its operations within the City to show Total Gross ▇▇▇▇▇▇▇▇, on a monthly basis and by service category, consistent with generally accepted accounting principles. To the extent practicable and required to verify the amount of the General Compensation payable to the City and compliance with any other term of this agreement, all such books of accounts and records as well as representatives of franchise holder shall be made available to City for inspection and/or examination during normal business hours, upon reasonable prior notice, at Grantee’s principal office or other office in Chicago. In the event the principal office is not located in Chicago, Grantee shall bear all the expenses of copying and transmitting said books of accounts and records to the City or all costs of the City, including but not limited to meals, hotels, and transportation, in travelling to the principal office of Grantee.

     5.5.2 Annual Audit. Annually, beginning in 1996 no later than August 30th of every Compensation Year during which this Agreement remains in force, Grantee shall supply to the City a copy of said financial statements and a certificate from an independent certified public accountant attesting to an audit showing that the amounts of compensation paid under Section 5.1 for the prior Compensation Year were in compliance with the provisions of Section 5.1 as to General Compensation. The City acknowledges that the financial statements so provided by Grantee are proprietary in nature and shall be held as confidential, subject to the provisions of Section 14.1 hereof.

     5.5.3 City Right of Audit. The City reserves the right, upon ten (10) days written notice to audit and review the records serving as the basis for such audit, which records shall also be regarded as proprietary and confidential subject to the provisions of Section 14.1 hereof. In the

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event the independent audit ordered by the City properly determines that Grantee’s General Compensation paid to the City was underpaid in the prior Compensation Year by more than 5%, Grantee shall bear the cost of the City’s audit.

     SECTION 6. INSURANCE, INDEMNIFICATION, SURETY BOND AND LETTER OF CREDIT

     Section 6.1 Insurance. On or prior to any commencement of construction of Grantee’s Initial Distribution System and in no event later than thirty (30) days following the Effective Date of this Agreement (unless such 30-day period is extended by the City) and at all times thereafter during the term of this Agreement, and thereafter during such time as may be required to remove Grantee’s Distribution Facilities and restore the Public Ways or public property where such Distribution Facilities were constructed), Grantee shall obtain, pay all premiums for, and file with the City Comptroller’s Office of Risk Management the types of insurance specified below with insurance companies authorized to do business in the State of Illinois with a financial rating acceptable to the City in the exercise of its reasonable discretion, covering all operations under this Agreement, whether performed by Grantee or its Contractors. The kinds and amounts of insurance required are as follows:

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     Grantee will furnish the City of Chicago, Risk Management Department, Depaul Center, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ , original Certificates of Insurance evidencing the required coverage to be in force on the date of this contract, and Renewal Certificates of Insurance, of such similar evidence, if the coverages have an expiration or renewal date occurring during the term of this Agreement.

     The insurance hereinbefore specified shall be carried through the period of the Agreement. Failure to carry or keep such insurance in force may constitute a violation of the Agreement, and the City maintains the right to exercise whatever rights and remedies it may have in law or in equity until proper evidence of insurance is provided. In lieu of the foregoing

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coverages, Grantee may self-insure to the extent acceptable to the City’s Risk Management if it provides for a certificate of Self-insurance acceptable to the Risk Manager.

     The insurance shall provide for thirty (30) days prior written notice to be given to the Department of Purchases and the Risk Management Office in the event coverage is substantially changed, canceled, or non-renewed.

     Grantee shall require all Contractors to carry the insurance required herein, or Grantee may provide the coverage for any or all Contractors, and, if so, the evidence of insurance submitted shall so stipulate.

     Grantee expressly understands and agrees that any insurance coverages and limits furnished by Grantee shall in no way limit the Grantee’s liabilities and responsibilities specified within this Agreement or by law.

     Grantee and each Contractor agrees that insurer shall waive their rights of subrogation against the City of Chicago. If any policy required to be purchased pursuant to this Agreement is subject to a deductible or similar provision limiting or reducing coverage, the deductible shall be paid by Grantee in the event of a loss occasioned by Grantee or any Contractor’s negligence or intentional acts.

     Section 6.2 Bond. Grantee shall, not later than the Effective Date, obtain a bond running to the City, which may be annually renewable or multi-year, running to the City with good and sufficient corporate surety acceptable to the City Comptroller in his reasonable discretion, with a minimum amount of Five Million Dollars ($5,000,000). Said bond shall be conditioned upon the faithful performance and discharge of the obligations imposed in this

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Agreement on the Grantee and shall insure the cost of removal, relocation or abandonment of Grantee’s District Cooling System or a portion thereof at any time the City determines the need for removal. The City’s right to recover under the bond shall be in addition to any other rights it may have pursuant to this Agreement or under law. Any proceeds recovered under the bond may be used to reimburse the City for loss of payment of General Compensation by Grantee, including principal and overdue interest, if any, and liquidated damages, if any, in case of default and other valuable consideration given pursuant to this Agreement, and to pay or reimburse the City for such reasonable additional expenses as may accrue or be incurred by the City as a result of Grantee’s failure to comply with this Agreement including, but not limited to, reasonable attorneys fees and the cost of any action or proceeding or judgment against the City, the reasonable cost of removal, relocation or abandonment of Grantee’s facilities, and the cost of any reasonable auditing costs and fees. For the City to recover from the surety or from the Grantee under this Section for removal, relocation, alteration, repair, maintenance or restoration of Grantee’s structures, it is not necessary that the City first perform such work. The Commissioner of the Department of the Transportation is hereby authorized to determine the reasonable cost of performing said removal, relocation, alteration, repair, maintenance or restoration and his decision as to the amount shall be final and binding. The bond shall provide and Grantee agrees that, upon receiving written notification from the Commissioner of the Department of Transportation of the reasonable cost of said removal and restoration, the Grantee and the surety shall pay said amount upon demand together with other reasonable related costs occasioned by any such default.

     Section 6.3 Letter of Credit. In lieu of the bond described in Section 6.2, and at the request of the Commissioner of the Department of Environment, Grantee shall provide the City

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with a letter of credit in the principal amount of Five Million Dollars ($5,000,000). Said letter of credit shall be used to ensure the faithful performance by Grantee of all provisions of this Agreement and compliance with all orders, permits and directions of any agency, commission, board, department division or office of the City having jurisdiction over Grantee’s acts or defaults under this Agreement and for payment by Grantee of any penalties, liens, claims and taxes due the City which arise by reason of the construction, installation, operation or maintenance of Grantee’s Facilities. Said letter of credit shall provide that if Grantee fails to pay the City any General Compensation due the City within the time fixed in this Agreement; or fails to repay the City within ten (10) days any reasonable damages, expenses or costs which the City is compelled to pay by reason of Grantee’s act or omission to act in connection with this Agreement; or fails after three (3) days notice of such failure to comply with any provisions of this Agreement which the Commissioner of the Department of the Transportation reasonably determines can be remedied by a draw on the letter of credit, the City can immediately request payment of the amount of the deficiency, with interest and penalties, if any, from the letter of credit. Upon such request for payment, the City shall notify the Grantee of the amount and date thereof. If amounts are drawn under the letter of credit, Grantee shall take such actions as may be necessary to maintain such letter of credit at full amount within three (3) days of notification by the City of its withdrawal against such letter of credit. The rights reserved to the City under such letter of credit shall be in addition to any other rights it may have pursuant to this Agreement or under law. The form of the letter of credit shall be approved by the Corporation Counsel.

     Section 6.4 Replacement Bond or Letter of Credit. The bond described in Section 6.2 or letter of credit described in Section 6.3 shall contain a covenant or endorsement of the surety

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or the issuer of the letter of credit, as the case may be, to provide sixty (60) days advance written notice by registered mail of such surety’s or issuer’s intention to terminate, substantially change, or not to renew such bond or letter of credit to the Corporation Counsel and the Grantee. In the event of any of the foregoing notices being given, Grantee shall obtain, pay premiums for, and file with the City’s Corporation Counsel a replacement bond or letter of credit as the case may be, which shall begin coverage on or prior to the proposed effective date of such termination, substantial change or non-renewal (“Cancellation Date”); provided, however, that no replacement bond or replacement letter of credit, as the case may be, shall meet the requirements of Section 6 unless it has been approved by the Corporation Counsel on or prior to the Cancellation Date of the bond, or letter of credit being replaced. The City shall approve or reject in writing any proposed replacement bond within thirty (30) business days of submission to the Corporation Counsel. In the event Grantee is unable to procure a replacement bond meeting the requirements of Section 6.2 or a replacement letter of credit meeting the requirements of Section 6.3 by the Cancellation Date, then Grantee can satisfy the requirements of Section 6.1 by depositing the sum of Five Million Dollars ($5,000,000) on or prior to the Cancellation Date into an escrow account for the benefit of the City, which escrow account would be held by a trustee of the City’s choosing pursuant to an escrow agreement reasonably satisfactory to the Corporation Counsel.

     Section 6.5 Failure to Comply is Material Breach. Except as permitted by Section 6.1, failure to carry the insurance required by Section 6.1 throughout the period set forth in Section 6.1 shall constitute a material breach of this Agreement. Except as permitted by Section 6.4, failure to maintain in force a bond meeting the requirements of Section 6.2 or a letter of credit meeting the requirements of Section 6.3 shall constitute a material breach of this Agreement.

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Upon any such material breach, without requirement for any hearing or notice, the permit described in Section 13.1 shall be automatically suspended without further action by the City. Upon such suspension, no further work related to Grantee’s District Cooling System shall be permitted and Grantee shall immediately cease operation of its District Cooling System. Such permit is subject to reinstatement by the City upon compliance by Grantee with the requirements of Section 6.1 and 6.2 and satisfaction by Grantee of such conditions as the City shall determine are necessary for protection of the City. The City further reserves the right to remove or cause the removal of any or all of Grantee’s facilities in the Public Ways subject to this Agreement. The parties hereto agree that a material breach of Sections 6.1 and 6.2 creates irreparable harm against the City for which an injunction is proper.

     Section 6.6 Right to Require Replacement of Bond (or Letter of Credit) or Insurance. If the financial condition of any bonding or insurance company (or letter of credit issuer) issuing a performance bond (or letter of credit) or insurance policy pursuant to Section 6 materially and adversely changes, the City may, at any time, require that any such bond (or letter of credit) or insurance policy be replaced with such other bond (or letter of credit) or insurance policy consistent with the requirements set forth in this Section.

     Section 6.7 Alteration. Grantee shall not materially change or alter the terms or conditions of the bond (or letter of credit) or insurance policies referred to herein or replace or cancel said bond (or letter of credit) or insurance policies without prior approval of the City Comptroller’s Office of Risk Management (in the case of the insurance policies) or the Corporation Counsel (in the case of the bond or letter of credit).

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     Section 6.8 City Comptroller’s Right to Increase Minimum Limits. In the event of changed circumstances that would render the limits of the insurance policies set forth in Section 6 hereof inadequate, the City reserves the right to reasonably increase the minimum limits of such insurance policies, at the end of the policy terms, upon sixty (60) days’ prior written notice to Grantee in order to ensure adequate protection to the City. Within sixty (60) days after the date of notice, Grantee shall increase the limits of such insurance policies, as applicable, to an amount equal to or greater than the increased minimum limits.

     Section 6.9 No Excuse from Performance. None of the provisions contained herein nor the bond (or letter of credit) or any of the insurance policies required herein shall be construed to excuse the faithful performance by Grantee of the terms and conditions of this Agreement or limit the liability of Grantee under this Agreement for any and all damages in excess of the amounts of such performance bond (or letter of credit) or insurance policies.

     Section 6.10 Insurance for Contractors and Subcontractors. Grantee shall provide coverage for any Contractor by either obtaining the necessary endorsements to its insurance policies or requiring such contractor or subcontractor to obtain appropriate insurance coverage consistent with Section 6.1 of this Agreement and appropriate to the extent of its involvement in the construction, installation, maintenance or operation of Grantee’s District Cooling System and shall provide evidence of the foregoing as required in Section 6.1.

     Section 6.11 Indemnity. Grantee shall be responsible for the support, safety and protection of its District Cooling System and Services and the Public ways being used by Grantee and for the safety and protection of all persons and all property coming into contact with Grantee’s facilities or their operations. Grantee shall be responsible for all damage to life, person

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and property due to the acts or omissions of the Grantee, its Contractors, Affiliates, subcontractors, agents or employees, in connection with its activities within Public Ways. Grantee shall, at its sole cost and expense, indemnify, defend, keep and save harmless the City, its officials, boards, commissions, consultants, agents and employees (collectively the “Indemnified Parties”) against any and all suits, causes of action, proceedings and judgments for claims, losses, damages (whether such claims, losses, and damages are for personal injury, property damage or interruption of utility service), liabilities, judgments, cost and expenses (collectively referred as a “Loss”) arising out of the grant of rights pursuant to this agreement and Grantee’s installation, construction and maintenance and operation of its District Cooling System or provision of the Services, or which in any way may result therefrom, whether or not it shall be alleged or determined that a Loss was caused through negligence or omission of Grantee or any of its employees, Affiliates, Contractors, subcontractors, agents or employees. The term “Loss” specifically shall be deemed to include, but not be limited to, any liability for the payment of Workmen’s Compensation under Illinois law which the City is required to make and Grantee specifically covenants to reimburse the City for any such payments made by the City. Grantee expressly understands and agrees that the insurance, bond or insurance required by this Agreement shall in no way limit the responsibility of Grantee to indemnify, keep and save harmless and defend the Indemnified Parties pursuant to this Section. Indemnified expenses shall include, but not be limited to, all out-of-pocket expenses of the City, such as attorney fees, and shall also include the reasonable value of any services rendered by the Corporation Counsel or his assistants or any consultants, employees or agents of the City and all costs and other expenses arising therefrom or incurred in connection therewith. The obligations set forth in this Section 6.8 shall survive termination or revocation of this Agreement.

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     SECTION 7. CONSTRUCTION, INSTALLATION AND MANAGEMENT OF GRANTEE’S DISTRIBUTION SYSTEM

     7.1.1 Initial Distribution Facilities. Prior to the Effective Date of this Agreement, Grantee shall place on file for approval with the Commissioner of the Department of Environment and the Commissioner of the Department of Transportation and the Commissioner of the Department of Buildings prints, maps and plans showing the exact proposed location of the First Plant and all related portions of the Initial Distribution Facilities proposed to be installed in the Public Ways as set forth in Exhibit 1, and the location of each conduit to be entered and the number of manholes or other openings to gain access to said conduit and a proposed construction schedule by utility quarter. Pursuant to City rules and regulations related to the City’s policy for District Energy Systems, the Department of the Environment shall coordinate the City’s review and permitting process for all District Energy Systems, including Grantee’s System. Permits for demolition must be obtained from the City’s Department of Buildings. Revisions to previously approved prints, maps, plans and construction schedules must receive prior approval by the City departments described above and shall be incorporated in amendments to Exhibits 1 and 2. Similar information shall be filed with the Commissioner of the Department of the Environment and the Commissioner of the Department of Transportation for approval prior to the issuance of a permit for any proposed extension, reduction or removal of any part of Grantee’s Initial Distribution Facilities from the Public Way which shall be incorporated in Amendments to Exhibits 1 and 2.

     7.1.2 Additional Distribution Facilities

     (a) No Additional Distribution Facilities may be installed or constructed except in connection with an Approved Plant. Prior to applying with the City for approval of a new Plant,

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Grantee shall file with the City a proposal showing among other things, the proposed Plant location, and the proposed location of all related portions of the System including Additional Distribution Facilities The City may reject or modify such proposal prior to formal submission to City Council of a plan for approval of a Plant.

     (b) Prior to installation in the Public Ways of Additional Distribution Facilities related to a Plant pending City Council approval or which is an Approved Plant, Grantee shall negotiate an amendment to this Agreement with the City, including an amendment to Exhibit 1. Such amendment shall provide for an increase in the minimum fees set forth in Section 5 proportionate to fees established in Section 5 and based on the maximum capacity of the applicable Plant. Such amendment shall be submitted for authorization to the City Council of the City prior to execution of such amendment by the parties. As part of the negotiation of any such amendment, Grantee shall submit to the City such prints, maps and plans as the City shall reasonably request. Upon approval of any such amendment and its execution, Grantee shall proceed to obtain permits for the Additional Distribution System pursuant to the provisions of Section 7.

     7.1.3 Notwithstanding Section 7.1.1 and Section 7.1.2 the Department of Transportation or the Department of the Environment may designate the configuration of Grantee’s Distribution System to minimize use of available Public Ways along which any of the Grantee’s System whether separately or jointly, shall be placed. The Department of Transportation may refuse to permit the Grantee to lay mains or conduits along both sides of, or in more than one part of any street.

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     7.1.4 If the installation of the District Cooling System requires the relocation of facilities within the Public Ways, said relocation or measures to minimize or eliminate the interruption shall be at Grantee’s sole expense.

     Section 7.2 Construction Requirements and Standards.

     7.2.1 In General. Grantee shall construct, install, maintain and operate its District Cooling System in a safe, orderly and workmanlike manner utilizing only materials of good, durable quality with due respect for engineering considerations and in accordance with applicable federal, state, City and local laws and regulations. Grantee shall at all times install its Distribution System in accordance with the standards set by the City’s Department of Transportation, the Department of Environment and the Department of Buildings.

     7.2.2 Compliance Standards. Grantee shall at all times comply with the following:

     (A) Applicable provisions of the Municipal Code of Chicago

     (B) Written standards and permit restrictions of the Department of Transportation or Department of Building applicable to Grantee’s construction, installation, operation and maintenance of its Distribution System.

     (C) Applicable statutes and regulations of the United States (including its agencies) and of the State of Illinois (including its agencies).

     7.2.3 Construction and Installation Procedures. No portion of Grantee’s Distribution System may be constructed, installed or modified on any portion of the Public Ways without prior approval of the Commissioner of the Department of the Environment and the Commissioner of the Department of Transportation and the issuance of a permit therefor.

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Permits will only be issued after written documentation has been received by the Commissioner of the Department of Transportation from the existing users of the Public Ways in the regard to the effect of the proposed installation of Distribution Facilities on such users’ existing facilities. Grantee shall submit to the City documents which set forth the specifications, standards and procedures for construction and installation of its Distribution System. Said specifications, standards and procedures shall be consistent with the highest standards of the district cooling industry and shall, at a minimum, establish procedures to ensure quality work and provide for the safety and protection of residents and property. Said documents shall be submitted to the City for review and Additionally, said specifications, standard and procedures shall provide for, and Grantee’s District Cooling System shall in fact be constructed, to meet the following requirements:

     (i) Latest applicable available industry standards for detecting leaks in District Energy Systems shall be followed by Grantee. Consideration shall be given to “pipe in pipe” construction for the Distribution System. Leak protection plans and procedures (including emergency strategy) for Grantee’s District Cooling System shall be submitted for approval to the Department of Environment and the Department of Transportation; and

     (ii) All portions of the Distribution System shall be designed to preclude freezing and to follow the latest industry standards for District Energy Systems in regard to freezing conditions. To that end, all portions of the Distribution System shall be subject to the City’s “3 foot minimum” cover standards from the top of the pipe to the general cover level unless Grantee shall obtain a waiver from the Department of the

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Environment and the Department of Transportation. Submission of a request for any such waiver shall include adequate justification; and

     (iii) The Distribution System shall be designed to the extent possible not to diminish or prevent access for repair and maintenance of underground facilities, whether owed by the City or by any third party. To the extent that such diminution or prevention is proposed, Grantee shall not proceed unless Grantee has entered into an agreement, which is subject to prior approval by the Department of Transportation, with the owner of the affected utility satisfactory to such owner. Such agreement may provide for replacement, upgrading or relocation of the affected facility.

     Said specifications, standards and procedures shall be submitted to the City for review and approval prior to commencement of construction of any part of Grantee’s Distribution System and shall be modified as the Commissioners of the Department of Environment and of the Department of Transportation may require in the interest of public safety and welfare. If at any time it is determined by the City, in its sole discretion and judgment, that any part of Grantee’s District Cooling System, including, without limitation, any Distribution Facilities or Plants, is harmful to the health or safety of any person, then Grantee shall, at its sole cost and expense, promptly correct all such conditions to the satisfaction of the City or such governmental authority.

     7.2.4 “As Built” Drawings. As each separate facility comprising a portion of Grantee’s District Cooling System is completed, Grantee shall submit to the City “as built” drawings of a size and material satisfactory to the Commissioner of the Department of the Environment and the Commissioner of the Department of Transportation within sixty (60) days after completion of construction of such portions. Grantee shall obtain approval for revisions. Said drawings, set

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forth by utility quarter sections, shall at a minimum include the chilled water conduit system and the location of power supplies and system monitor test points and related equipment installed in the public Ways.

     7.2.5 Emergency or Disaster. In case of emergency or disaster, Grantee shall, upon request of the City, make available its District Cooling System to the City, without costs, for emergency use.

     7.2.6 Adjoining Property Owners. All of Grantee’s District Cooling System shall be so installed and located so as to cause minimum interference with the rights and appearance and reasonable convenience of adjoining property owners and at all times shall be kept and maintained in a safe, adequate and substantial condition, and in good order and repair.

     7.2.7 Adjustment of Utility Facilities. In the event that the location of Grantee’s District Cooling System will require an adjustment of the location of existing public or private utility facilities, Grantee must obtain written consent of the owner of such utility including, where applicable, all relevant City departments to such adjustment and make such arrangements for the payment or reimbursement of the cost of such adjustment as are satisfactory to the owner of such utility including, where applicable, all relevant City departments. No permit for construction pursuant to Section 7.1 will be issued until the Commissioner of the Department of Transportation is satisfied that the requirements of this paragraph 7.2.7 have been satisfied. In no case shall Grantee be entitled to perform such adjustment or disturb such utility facilities without the written consent of the owner of such utility.

     7.2.8 Electrical Work. All Electrical work related to heat, light or power in the Grantee’s District Cooling System shall be performed in accordance with Title XIV of the Code.

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     Section 7.3 Restoration. In the event of disturbance of the Public Ways or private property by Grantee, Grantee shall, at its own expense and in a manner approved by the City or other appropriate governmental authority and/or the owner, rebuild, restore and repair such Public Ways, including any cartways or sidewalks, or private property to the satisfaction of the Department of Transportation. Such restoration shall include curb to curb resurfacing of all affected Public Ways in which Grantee has installed its facilities or made utility cuts. In the event Grantee fails to perform such rebuilding, replacement or restoration, the City shall have the right to do so at the sole expense of Grantee.

     Section 7.4 Suspension or Revocation of Construction Permit. The Commissioner of the Department of Transportation or the Commissioner of the Department of Buildings may suspend or revoke any permit issued by such Department or take any action he deems necessary, including the stopping of work, should Grantee violate the terms of said permit, until said violation has been corrected to said Commissioner’s satisfaction.

     Section 7.5 Other Requirements and Approvals.

     Issuance of a permit by the Commissioner of the Department of Transportation or the Commissioner of the Department of Buildings as to the construction and installation of any portion of Grantee’s District Cooling System does not waive other applicable requirements of federal or Illinois law or the Code and Grantee shall comply with such other requirements. Grantee is further responsible for obtaining approvals related to Grantee’s use of the Public Ways contemplated in this Agreement from other applicable City departments in a timely fashion when and as required.

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     Section 7.6 Underground Facilities Agreement. Upon written direction of the Commissioner of the Department of Transportation, Grantee agrees to apply for, and if accepted, enter into such membership and other agreements as the City shall direct in any City-sponsored utility alert network for underground facilities. Grantee agrees to pay its fair and reasonable share of the costs and expenses incurred for maintaining such network as provided in such agreements.

     SECTION 8. INSPECTION

     Section 8.1 Inspection. The City reserves the right to make, at any time after the Effective Date of this Agreement and throughout the duration of this Agreement, physical on-site inspections of all parts of Grantee’s District Cooling System at the City’s discretion. Grantee will accommodate the City’s monitoring needs by providing a map and the “as built” drawings required by Section 7.2.4 which Grantee shall update quarterly or indicate “no change”, as the case may be, and submit to the City at the time of Grantee’s March, June, September and December payments. Said map will identify the locations of all facilities, and the lineal footage of each portion of Grantee’s District Cooling System located in the Public Ways. The City acknowledges that, subject to the provisions of Section 14.1 hereof, said summaries provided by Grantee are proprietary in nature and shall be held as confidential as to third parties.

     Section 8.2 Trespassing Facilities. Any portion of Grantee’s District Cooling System located in the Public Ways but not properly authorized by this Agreement, as amended pursuant to Section 7.2.1, or properly permitted is known as a “Trespassing Facility”.

Upon discovery of a Trespassing Facility by the City the Commissioner of the Department of the Environment shall have the following options:

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provided that the Commissioner of the Department of the Environment shall waive for a period of thirty (30) days any such remedy in the event he determines that (i) the trespass was inadvertent and (ii) Grantee is making a good faith effort to remove or relocate the Trespassing Facility promptly, so as to correct any violation of this Agreement. Said Waiver may be extended beyond the thirty (30) day correction period by the Commissioner of the Department of the Environment for circumstances beyond the reasonable control of Grantee, but only upon prior approval by the Commissioner of the Department of the Environment of Grantee’s timetable specifying the anticipated date the Trespassing Facility will be removed or relocated so as not to violate this ordinance.

     SECTION 9. CHICAGO FREIGHT TUNNELS

     Section 9.1 In General. Grantee does not presently contemplate using the Chicago Freight Tunnels for its System. Should Grantee desire to use the Chicago Freight Tunnels, Grantee and the City shall negotiate an amendment to this Agreement to encompass the Freight Tunnels. It is acknowledged by Grantee that the Chicago Freight Tunnels are a unique environment and space has become in certain portions thereof a scarce resource. In order to preserve the availability of the Chicago Freight Tunnels for future grantees and permittees and

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because of the nature of Grantee’s District Cooling System and Services, the Grantee may be subject to restrictions which limit the size of the conduit or facilities the Grantee constructs or installs therein or limitations as to the locations of such conduits or facilities as to the use of the Tunnels in general. The City reserves the right to increase the amount of compensation payable under this Agreement and to impose additional fees specifically for the use of the Chicago Freight Tunnels not otherwise described in this Agreement, so long as such fees are nondiscriminatory and reasonable, given the nature of Grantee’s District Cooling System and the nature of its Services. Any use of the Freight Tunnels is also subject to the provisions of any City ordinance or regulation governing the use of the Freight Tunnels. Subject to the foregoing conditions and such restrictions on the availability of space as may be established by the City’s Department of Transportation, Grantee may apply to use the Freight Tunnels for its District Cooling System on the same basis and subject to the same conditions as other grantees and permittees authorized to use the Freight Tunnels for Systems of similar size and purpose on the use of the Freight Tunnels established by the Commissioner of the Department of Transportation.

     SECTION 10. REVOCATION OR TERMINATION OF PRIVILEGES

     Section 10.1 Basis for Revocation. Subject to the provisions of Sections 10.2 and 10.3 of this Agreement, the permission and authority granted by the City to Grantee to use the Public Ways for its District Cooling System pursuant to the Ordinance may be revoked by the City whenever any of the following occur:

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     Section 10.2 Corrective Period. In the event that the City believes that grounds for revocation exist or have existed, the City shall notify the Grantee in writing, setting forth the nature and facts of such noncompliance. If, within thirty (30) days following such written notification, the Grantee has not furnished reasonably satisfactory evidence that corrective action has been taken or is being actively and expeditiously pursued, or that the alleged violations did not occur, or that the alleged violations were beyond Grantee’s control pursuant to Section 15.12 hereof, the Agreement may be terminated by the Commissioner of the Department of the Environment. Upon good cause, the thirty (30) day correction period shall be extended for such reasonable time as said Commissioner shall determine. Such good cause must be detailed in

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writing to said Commissioner at least five days prior to the lapse of the thirty (30) day correction period.

     Section 10.3 Prior Notice and Hearing. After expiration of such thirty (30) day period (as it may be extended), the Commissioner of the Department of Environment may terminate the Agreement provided that (1) notice has been given to the Grantee that the Commissioner of the Department of Environment proposes to take such action and the grounds therefor and (2) the Grantee has had a reasonable opportunity to be heard by said Commissioner.

     Section 10.4 Early Termination by Grantee. Grantee may request early termination of its privilege to use the Public Ways granted pursuant to this Agreement (“Early Termination”). In order for Grantee to be released pursuant to Early Termination from its obligation to pay General Compensation pursuant to Section 5.1 hereof and to meet the requirements of Section 5.1.5, Grantee must satisfy the following prior conditions:

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     In the event that Grantee satisfies all of the foregoing conditions, Grantee shall be entitled to cease paying General Compensation and meeting the requirements of Section 5.1.5 on and after the Proposed Early Termination Date. Notwithstanding the foregoing, the obligations of Grantee as to a performance bond shall extend until satisfaction of Section 10.5.1 by Grantee and the obligations of Grantee with respect to indemnification of the City set forth in Section 6.10 shall survive any such release.

     Section 10.5 Removal or Abandonment of Grantee’s District Cooling System.

     10.5.1 Removal by Grantee. Upon revocation or termination of the privilege herein granted the Grantee, without cost or expense to the City of Chicago, shall promptly remove or abandon in place, at the option of the City, its District Cooling System and restore the Public Ways where disturbed by removal of said structures or appliances to a proper condition under the supervision and to the satisfaction of the Commissioner of the Department of Transportation and in accordance with this Agreement and the Code. Buildings, plants or structures not on the Public Ways constituting a part of Grantees’ District Cooling System shall be demolished by the Grantee at no cost to the City at the City’s option. In all cases, such facilities which are not removed within one (1) year of such date of termination or revocation shall become the property of the City.

     10.5.2 Removal by the City. In the event of the failure or refusal of the Grantee to remove facilities or restore the Public Ways where facilities are removed, as required by Section 10.5.1, the City may remove or cause the removal of Grantee’s Facilities provided, however, that

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the City shall be reimbursed for the total costs of such removal to the extent that such costs exceed the amount of the bond set forth in Section 6 of this Agreement.

     SECTION 11. SANCTIONS

     Section 11.1 Material Underpayment or Nonpayment. In the event the independent audit provided for in Section 5.5 determines that Grantee made underpayments in any month which exceeded ten percent (10%) of the amount due in said month, or in the event Grantee fails to make any payment on the date due, Grantee shall pay, in addition to the amount due the City, interest thereon compounded daily at the rate of one hundred and fifty percent (150%) of the corporate base rate as computed daily by the First National Bank of Chicago. Interest on the entire sum originally due shall accrue from the date on which the original payment should have been made.

     Section 11.2 Liquidated Damages. The parties agree that the events set forth below will result in damages that will be impracticable or difficult to ascertain. Subject to the provisions of Sections 11.4 and 11.5, Grantee therefore agrees to pay the City the sum of six thousand dollars ($6,000) a day until the violation is corrected, which shall not be considered in the nature of a penalty. Such events are as follows:

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     Section 11.3 Notice of Violation. If the City has reason to believe that Grantee is in violation of this Agreement, Grantee shall be notified in writing of the violation setting forth the nature of such violation. Within thirty (30) days of its receipt of such notice, Grantee shall respond in writing regarding such notice of violation with supporting documentation that such violation did not occur or was beyond Grantee’s control and requesting an opportunity to be heard or shall remedy the violation within such thirty (30) day period; provided, however, that the City may determine that the violation is of such a serious nature that a lesser period for remedying the violation is warranted. Grantee shall remedy the problem or respond within that period. If Grantee cannot reasonably remedy the violation within the time period specified and so informs the City, the City may extend the time permitted for remedying the violation provided Grantee informs the City on a regular basis of the steps being taken to remedy the violation.

     Section 11.4 Notice of Assessment. If within thirty (30) days (or such lesser period specified in the notice) of its receipt of notice of the violation pursuant to Section 11.3 of this Agreement, Grantee fails to submit a written response contesting the notice of violation or, if after requesting an opportunity to be heard, Grantee fails to prove in said hearing that such

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violation did not occur or was beyond its control or if Grantee fails to remedy the violation within any cure period under this Agreement or any extensions thereto, the City, after considering all relevant factors, may impose upon Grantee, liquidated damages or other monetary sanctions from the date of notice of violation in accordance with Sections 11.1 and 11.2 of this Agreement and shall provide Grantee with prior written notice of such assessment. Such notice of assessment shall state the amount to be assessed and provide a date at least fifteen (15) days after receipt of such notice upon which payment for the violation is due.

     Section 11.5 Act or Omission Beyond Grantee’s Control. Grantee shall not be subject to the imposition of liquidated damages referred to herein for any act or omission if such act or omission was beyond Grantee’s control, including but not limited to, events described in Section 15.11 hereof. An act or omission shall not be deemed to be beyond Grantee’s control solely because it was committed, omitted or caused by an Affiliate involved in constructing, installing, maintaining or operating Grantee’s Distribution Facilities within the City of Chicago. The inability of Grantee to obtain financing and the misfeasance or malfeasance of its officers, directors, employees or agents shall not be deemed an act or omission beyond Grantee’s control.

     Section 11.6 Other Rights of City. The right of the City to impose upon Grantee liquidated damages pursuant to Section 11.1 and 11.2 hereof shall be in addition to any other rights or remedies the City has under this Agreement, the Code or other applicable laws including the right of termination pursuant to Section 10 of this Agreement.

     Section 11.7 No Waiver of Rights. The decision by the City to forego the imposition upon Grantee of liquidated damages in a particular instance shall in no way act to waive the City’s rights regarding subsequent violations of this Agreement.

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     SECTION 12. MOST FAVORED NATIONS

     The City Council may authorize another person to construct, install, operate and maintain a District Cooling System in the Public Ways of the City in order to offer Services for profit to more than a single customer pursuant to an ordinance or agreement authorized by ordinance, including any modifications of an existing ordinance or agreement, containing compensation terms which would, if applicable to Grantee’s situation and if applied to Grantee, result in Grantee paying less total annual compensation than the compensation to be paid by Grantee pursuant to Section 5 of this Agreement (said ordinance and/or agreement shall be referred to collectively as an “Alternative Agreement”). In such event, Grantee shall have the option, exercisable in writing within ninety (90) days Grantee of after notice of adoption of the Alternative Agreement, to replace the compensation terms stated in Section 5 of this Agreement with the compensation terms set forth in the Alternative Agreement which are applicable to Grantee’s situation. Grantee shall notify the Commissioner of the Department of the Environment in writing of Grantee’s election to accept such substitute compensation terms pursuant to an agreement amending or replacing this Agreement (the “Amending Agreement”). Notwithstanding anything to the contrary, Grantee’s option to elect to substitute compensation pursuant to this Section 12 shall not provide any retroactive credit for compensation already paid to the City pursuant hereto and shall be conditioned on the acceptance by Grantee in the Amending Agreement of such other provisions of the Alternative Agreement as the Commissioner of the Department of the Environment shall reasonably require in the interest of fairness and uniformity.

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     SECTION 13. CONDITIONS PRECEDENT

     Section 13.1 Permit. The permission and authority herein granted for installation of Grantee’s Distribution System shall be exercised through the permit application process. A permit shall not be issued by the City until (i) proof of insurance as required in Section 6 hereof is submitted to and approved by the City Comptroller’s Office of Risk Management and, (ii) the surety bond (or letter of credit) required by Section 6 is submitted to and approved by the City’s Corporation Counsel.

     SECTION 14. CONFIDENTIALITY

     Section 14.1 Confidentiality. Subject to the provisions of Mayoral Executive Order 89-1 and the Illinois Freedom of Information Act, 5 ILCS 140/1 et. seq. (1992), any customer lists or “as built” drawings, or other similar information properly designated by Grantee to be “Confidential” and provided to the City or its constituent departments pursuant to requirements of this Agreement shall be regarded as proprietary and confidential as to third parties. The foregoing shall not apply to any information which the City can reasonably demonstrate is in the public domain through no breach of this Agreement by the City. In the event that a third party (not under the control of either Grantee or the City), shall request disclosure of any such confidential information from the City in accordance with the Mayoral Executive 89-1 or the Illinois Freedom of Information Act, the City shall confer with Grantee as to whether Grantee authorizes release of such information. In the event that Grantee wishes to continue to preserve the confidential nature of such information, and the City has no reason to believe that such information is not protected from disclosure pursuant to the Illinois Freedom of Information Act or Mayoral Executive Order 89-1, then the City shall not release such confidential information in the absence of a court order; provided that Grantee shall indemnify, defend and hold harmless

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the Indemnified Parties against all claims, damages (including court costs and reasonable attorneys’ fees) which the City may sustain or become liable for which arise from any action to require disclosure of information designated by Grantee to be confidential. In the event that the City is presented with a subpoena duces tecum regarding any documents or information properly designated confidential by Grantee which may be in the City’s possession by reason of this Agreement, the City shall give notice to Grantee (unless subpoena duces tecum prevents the City from providing such notice) with the understanding that Grantee shall have the opportunity to contest such process by any means available to it before such documents or information required to be submitted by the City to a court or other third party.

     In the event that the Grantee shall not elect to undertake appropriate legal proceedings to prevent disclosure of information designated as “confidential”, Grantee shall indemnify, defend and hold harmless the Indemnified Parties against all claims, damages (including court costs and reasonable attorney’s fees) which such Indemnified Parties may sustain or become liable for which arises from any action to require disclosure of such information or resulting from any such disclosure.

     SECTION 15. SPECIAL CONDITIONS AND REPRESENTATIONS

     Section 15.1 No Recourse. Except as expressly provided in this Agreement or at law, the Grantee shall have no recourse against the City for any loss, expense or damage resulting from the terms and conditions of this Agreement or because of the City’s lawful enforcement thereof nor for the City’s failure to have authority to grant the rights conveyed in this Agreement. The City makes no warranty as to the scope or effectiveness of the dedication of any part of the Public Ways in which Grantee may desire to locate its facilities. Furthermore, any such grant is subject to such restriction as may exist, now or in the future under the laws of the State of Illinois

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and the United States of America. Grantee agrees to this Agreement relying upon its own investigation and understanding of the power and authority of the City to grant the Grantee its rights under the Agreement.

     Section 15.2 No Inducement. Grantee acknowledges that it has not been induced to execute this Agreement by any promise, verbal or written, by or on behalf of the City, or by any third person regarding any term or condition of this Agreement not expressed herein. Grantee further states that no such promise has been made to any City employee in regard to the grant of these rights.

     Section 15.3 Acceptance and Acknowledgment. Grantee acknowledges that it has carefully read, understands and accepts without reservation the obligations imposed by the terms and conditions herein. Grantee further accepts the validity of the terms and conditions of this Agreement and will not, at any time, proceed against the City in any claim or proceeding challenging any term or provision of this Agreement.

     Section 15.4 Conflict of Interest. No member of the governing body of the City or other unit of government and no other official, officer, agent or employee of the City is employed by Grantee or has a financial or economic interest, directly or indirectly, in this Agreement or any subcontract resulting therefrom or in the privileges to be granted hereunder except as may be permitted in writing by the Board of Ethics established pursuant to the Municipal Code of Chicago (Chapter 2-156). No payment, gratuity or offer of employment shall be made in connection with this Agreement by or on behalf of any subcontractors to the Grantee or higher-tier subcontractors or anyone associated therewith, as an inducement for the award of a

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subcontract or order. Grantee acknowledges that any agreement entered into, negotiated or performed in violation of any of the provisions of Chapter 2-156 shall be voidable as to the City.

     Section 15.5 Compliance with Applicable Laws.

          (a) Grantee agrees that in constructing, installing, operating and maintaining its District Cooling System, Grantee shall comply with all applicable laws and regulations and tariffs of the United States and its agencies, the State of Illinois and its agencies, all applicable ordinances and executive orders of the City, all applicable regulations of the Illinois Commerce Commission and such laws, regulations, tariffs, ordinances, and executive orders shall be considered part of this Agreement as though set forth herein.

          (b) If Grantee conducts any business operations in Northern Ireland, it is hereby required that Grantee make all reasonable good faith effort to conduct any such business operations in Northern Ireland in accordance with the ▇▇▇▇▇▇▇ Principles for Northern Ireland as defined in Illinois Public Act 85-1390 (1988 Ill. Laws 3220).

          (c) Grantee shall comply with all laws relating to environmental matters including without limitation, those relating to fines, orders, injunctions, penalties, damages, contribution, cost recovery compensation, losses or injuries resulting from the release or threatened release of Hazardous Materials, special wastes or other contaminants including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. Section 9601 et. seq.) the Hazardous Material Transportation Act (49 U.S.C. Section 1801 et. seq.), the Resource Act (33 U.S.C. Section 1251 et. seq.), the Clean Air Act (42 U.S.C. Section 6901 et. seq.), the Toxic Substances Control Act of 1986 (15 U.S.C. Section 2601 et. seq.), the Safe Drinking Water Act (42 U.S.C. Section 300f), the Occupational Safety and Health Act of 1970 (29 U.S.C. Section 651 et.

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seq.), the Emergency Planning and Community Right-to-Know Act (42 U.S.C. Section 11001 et. seq.), the Illinois Environmental Protection Act (415 ILCS 5/1 et seq. (1992) and the Chicago Municipal Code, each as amended or supplemented, and any analogous future or present local, state or Federal statutes, rules and regulations promulgated thereunder or pursuant thereto, and any other present or future law, ordinance, rule, regulation, permit or permit condition, order or directive regulating, relating to or imposing liability or standards of conduct concerning any Hazardous Materials or by Federal government, any state or any political subdivision thereof, or any agency, court or body of the Federal government, any state or any political subdivision thereof, exercising executive, legislative, judicial, regulatory or administrative functions (collectively “Environmental Laws”).

     Section 15.6 Anti-Corruption Covenant and Representation. Grantee represents that it to the best of its knowledge, their subcontractors, are not in violation of the provisions of Section 2-92-320 of the Municipal Code of Chicago. Section 2-92-320 of the Municipal Code states, in pertinent part, that, except as provided for therein, no person or business entity shall be awarded a contract or subcontract if that person or business entity or an affiliated entity thereof (as defined in that chapter): (i) has been convicted of bribery or attempting to bribe a public officer or employee of the City, the State of Illinois, or any other public entity, in that officer’s or employee’s official capacity; (ii) has been convicted of agreement of collusion among bidders or prospective bidders in restrain of freedom of competition by agreement to bid a fixed price, or otherwise; or (iii) has made an admission of guilt to such conduct described in (i) or (ii) above which is a matter of record but has not been prosecuted for such conduct. Ineligibility under this section shall continue for three years following such conviction or admission. For purposes of Section 2-92-320 when an official, agent or employee of a business entity has committed any

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offense under this section on behalf of such an entity and pursuant to the direction or authorization of a responsible official thereof, the business entity shall be chargeable with the conduct. In connection herewith, Grantee has executed the applicable Certification required under the Illinois Criminal Code, 720 ILCS 5/33E-1 et seq. (1992) as amended, and under the Illinois Municipal Code, 65 ILCS 5/1142.1-1 (1992) which is attached hereto as Exhibit 3 and incorporated by reference as if fully set forth here. Prior to entering into any contractual relationship with any third party in order to perform same under this Master Agreement Grantee shall conduct a diligent investigation in order to determine compliance with this Section. If after Grantee enters into such a contractual relationship, it is determined that such contractual relationship is in violation of this paragraph, Grantee shall immediately cease to use such third party in performing under the authority set forth in this Agreement. In all cases in which Grantee enters into contractual relationships with such third parties, the terms of such contract shall provide that Grantee shall be entitled to recover all payments made by Grantee to such third party if prior to or subsequent to the beginning of such contractual relationship the use of such third party in order to perform under this Agreement would be violative of this Section 15.8.

     Section 15.7 Cooperation With Inspector General. It shall be the duty of Grantee, all subcontractors and all officers, directors, agents, partners and employees of Grantee to cooperate with the Inspector General in any investigation or hearing undertaken pursuant to Chapter 2-56 of the Chicago Municipal Code. Grantee understands and will abide by all provisions of Chapter 2-56 of the Municipal Code of Chicago. Grantee shall inform all its subcontractors of the provision and require understanding and compliance herewith.

     Section 15.8 Business Documents and Disclosure of Ownership Interests. Grantee has provided copies of the latest articles of incorporation of Grantee their respective by-laws and

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resolutions, and evidence of Grantee’s authority to do business in the State of Illinois including certifications of good standing with the office of the Secretary of State of Illinois. Grantee has provided the City with Disclosure of Ownership Interest Affidavit completed copies of which are attached hereto and incorporated by reference herein as Exhibit 4.

     Section 15.9 MBE/WBE Compliance. Grantee shall attain no less than a twenty-five percent (25%) Minority-Owned Business Enterprise (“MBE”) and a five percent (5%) Women-Owned Business Enterprise (“WBE”) utilization levels applicable to Grantee’s payment to outside contractors and subcontractors in relation to those activities designated hereunder as “Activities” (see the City’s Minority-Owned and Women-Owned Business Enterprise Procurement Program, the Code, Section 2-92-420 (et. seq.)).

     “MBE/WBE Activities” are, within the City, installation and construction services within customer buildings, outside buildings, and construction of buildings housing Approved Plants for Grantee’s District Cooling System, such MBE/WBE Activities to include, but not be limited to, installation, construction and repair of Distribution Facilities.

     Grantee shall furnish to the City Annual reports detailing its compliance with the provisions of this Section 15.09. If a report shows noncompliance with the MBE and WBE percentages, the City shall provide Grantee with notice of noncompliance. The Grantee shall use its best efforts to cure the noncompliance over a reasonable period following the notice.

     Section 15.10 Compliance with the Environmental Laws. Grantee shall comply with all laws relating to environmental matters including without limitation, those relating to fines, orders, injunctions, penalties, damages, contribution, cost recovery compensation, losses or injuries resulting from the release or threatened release of Hazardous Materials, special wastes or

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other contaminants including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. Section 9601 et. seq.) the Hazardous Material Transportation Act (49 U.S.C. Section 1801 et. seq.), the Resource Act (33 U.S.C. Section 1251 et. seq.), the Clean Air Act (42 U.S.C. Section 6901 et. seq.), the Toxic Substances Control Act of 1986 (15 U.S.C. Section 2601 et. seq.), the Safe Drinking Water Act (42 U.S.C. Section 300f), the Occupational Safety and Health Act of 1970 (29 U.S.C. Section 651 et. seq.), the Emergency Planning and Community Right-to-Know Act (42 U.S.C. Section 11001 et. seq.), the Illinois Environmental Protection Act (415 ILCS 5/1 et seq.) and the Chicago Municipal Code, each as amended or supplemented, and any analogous future or present local, state or Federal statutes, rules and regulations promulgated thereunder or pursuant thereto, and any other present or future law, ordinance, rule, regulation, permit or permit condition, order or directive regulating, relating to or imposing liability or standards of conduct concerning any Hazardous Materials or by Federal government, any state or any political subdivision thereof, or any agency, court or body of the Federal government, any state or any political subdivision thereof, exercising executive, legislative, judicial, regulatory or administrative functions (collectively “Environmental Laws”).

     If any of the above laws require the Grantee to file any notice or report of a release or threatened release of Hazardous Materials or special wastes on, under or about any premises used by Grantee to perform the services required hereunder, the Grantee shall provide a copy of such report or notice to the City. In the event of a release or threatened release of Hazardous Materials, special waste or other contaminants into the environment by Grantee or its Contractors or in the event any claim, demand, action or notice is made against the Grantee regarding the Grantee’s failure or alleged failure to comply with any of the above environmental laws, in regard to activities related to Grantee’s system, Grantee shall immediately notify the City in

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writing and shall provide the City with copies of any written claims, demands, notices or actions so made. Grantee shall comply with the rules and regulations stated in any applicable mandatory recycling ordinance enacted or amended by the City Council of the City of Chicago.

     If Grantee fails to comply with any of the above referenced environmental laws, the City may terminate this Agreement in accordance with the default provisions of this Agreement.

     For purposes of this provision, the following definitions shall apply.

     “Hazardous Materials” means friable asbestos or asbestos-containing materials, polychlorinated biphenyls (PCB’s) petroleum or crude oil or any fraction thereof, natural gas, special nuclear materials; and by product materials regulated under the Atomic Energy Act (42 U.S.C Section 2011, et. seq.), pesticides regulated under the Federal Insecticide Fungicide and Rodenticide Act (7 U.S.C. Section 136 et. seq.) and any hazardous waste, toxic or dangerous substance or related material, including any material defined or treated as “hazardous substance,” “hazardous waste,” “toxic substance,” or contaminant (or comparable term) under any of the Environmental Laws.

     “Special Wastes” means those substances as defined in Section 415 ILCS 5/3.45 of the Illinois Environmental Protection Act, and as further referred to in Section 809.13 of 35 Illinois Code, Subtitle G, ch. 1.

     Filings. The Grantee shall provide to the City a copy of each periodic report or record filed with any state or federal agency regulating the Grantee’s rates, service, issuance of securities, or compliance with affirmative action and equal opportunity requirements.

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     Section 15.11 Residency. Except as otherwise prohibited by law, Grantee and its Contractors which have been awarded contracts of $100,000 or over for construction and installation work related to Grantee’s District Cooling System within customer buildings and outside buildings and construction of buildings housing Approved Plants, such work including but not limited to, the installation, construction and repair of Distribution Facilities shall comply with the minimum percentage of total worker hours performed by actual residents of the City of Chicago specified in Section 2-92-330 of the Municipal Code of Chicago (at least fifty percent of the total worker hours shall be performed by actual residents of the City of Chicago); provided, however, that in addition to complying with this percentage, Grantee and its Contractors shall make good faith efforts to use qualified residents of the City of Chicago in both unskilled and skilled labor position.

     A contractor may request a reduction or waiver of this minimum percentage level of Chicagoans in accordance with standards and procedures developed by the City.

     (i) Definitions. For this Section 15.11, “actual residents of the City of Chicago shall mean persons domiciled within the City of Chicago. The domicile is an individual’s one and only true, fixed and permanent home and principal establishment.

     (ii) Documentation. Grantee shall provide for the maintenance of adequate employee residency records to ensure that actual Chicago residents are employed on the project.

     (iii) Access to Records. Full access to Grantee’s and its Contractors employment records shall be granted to the City or its duly authorized representatives. Grantee and its Contractors shall maintain all relevant personnel data in records for a period of at least three years after termination of this Agreement. At the direction of the City, affidavits and other

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supporting documentation will be required of Grantee to verify or clarify an employee’s actual address when doubt or lack of clarity arises.

     Section 15.12 Force Majeure. Grantee shall not be deemed in violation of this Agreement for the delay in performance or failure to perform in whole or in part its obligations under this Agreement due to strike, war or act or war (whether an actual declaration is made or not), insurrection, riot, act of public enemy, accident, fire, flood or other act of God or by other events to the extent that such are caused by circumstances beyond Grantee’s control and any such delay or failure to perform shall not be deemed to be a violation of this Agreement. In the event that the delay in performance or failure to perform affects only part of Grantee’s capacity to perform its obligations under this Agreement, Grantee shall perform such obligations to the extent it is able to do so in as expeditious a manner as possible. Grantee shall promptly notify the Commissioner of the Department of the Environment or the Commissioner of the Department of Transportation, as appropriate, in writing of an event covered by this Section and the date, nature and cause thereof. Furthermore, Grantee, in such notice, shall indicate the anticipated extent of such delay and the obligations under this Agreement to be affected thereby. The provisions of this Section 15.11 shall not excuse Grantee’s failure to pay General Compensation when due pursuant to Section 5.1.

     SECTION 16. GENERAL PROVISIONS.

     Section 16.1 Governing Law. This Agreement shall be construed pursuant to the laws of the State of Illinois.

     Section 16.2 Descriptive Headings. Section headings are descriptive and used merely for the purpose of organization and where inconsistent with the text are to be disregarded.

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     Section 16.3 Notices. Unless otherwise specified herein, all notices, requests, designations, deliveries, approvals, consents, demands and waivers required or provided hereunder or desired by the parties hereto shall be in writing and shall be deemed properly served if hand-delivered to the parties at the following addresses (effective on delivery) or if sent by registered or certified mail, postage prepaid, return receipt requested, addressed to the parties at the following addresses (effective on mailing):

or to such other parties or other addresses as either party may designate by notice to the other. The specification of a number of days’ or months’ notice shall mean notice of not less than such number of days or months, unless otherwise provided in this Agreement.

     Section 16.4 Invalidity. If any section, paragraph or provision of this Agreement shall be held to be invalid or unenforceable for any reason, the invalidity or unenforceability of such section, paragraph or provision shall not affect any of the remaining provisions of this Agreement.

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     Section 16.5 Parties. Except where the context would require a different meaning, all references to Grantee or the City include each of its and their officials, officers, directors, employees, shareholders, agents and permitted assigns, and legal representatives. No member, individually or collectively, of the City Council or agent or employee of the City and no officer or director of Grantee incurs or assumes any individual or personal liability by the execution of this Agreement or by reason of default in the performance of any of the terms hereof. All such liability of such officials, agents and employees of the City and officers and directors of Grantee, unless otherwise required by law, is hereby released as a condition of and in consideration for the execution of this Agreement. The signatories to this Agreement, do however, by execution thereof, warrant their authority to sign this Agreement.

     Section 16.6 Choice of Forum. Any legal action regarding this Agreement shall be brought in the appropriate court located in Chicago, Illinois. The parties hereby submit to the personal jurisdiction and venue of such courts located in Chicago, Illinois for the purpose of enforcing the provisions of this Agreement.

     Section 16.7 Waiver. Failure or delay on the part of the City to exercise any right, power, privilege, or remedy hereunder shall not constitute a waiver thereof. A waiver, to be effective, must be in writing, and must be signed by the appropriate City officials making the waiver. A written waiver of default shall not operate as a waiver of any other default or of the same type of default on a future occasion.

     Section 16.8 Amendment. No revision, modification, or amendment of this Agreement shall be effective unless it is in writing and signed by duly authorized representatives of the City

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and Grantee. Typographical errors may be corrected or other minor changes made to this Agreement if those corrections are initialed by the party to be bound.

     SECTION 17. EXECUTION COPIES.

     This Agreement is executed in triplicate, each of which shall constitute an original instrument.

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     IN WITNESS WHEREOF, the City has caused this Agreement to be duly executed in its name and behalf as of the date first written by its Mayor, its Commissioner of the Department of Environment, its Director of the Department of Revenue and its Commissioner of the Department of Transportation and its seal to be hereunto duly affixed and attested by its City Clerk, and the Grantee has signed and sealed the same on or as of the day and year first written.

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[▇▇▇▇▇ and ▇▇▇▇▇▇, Ltd. Letterhead]

July 17, 1995

▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
Unicom Thermal Technologies, Inc.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇

Dear ▇▇▇:

     I am enclosing herein an executed copy of the First Amendment to the District Cooling System Use Agreement between the City of Chicago and Unicom Thermal Technologies, Inc.

     After you have reviewed the Agreement, if you have any questions please call me.

Sincerely,

▇▇▇▇ ▇. ▇▇▇▇▇▇

JJG:ml

Enclosure

M’▇▇▇▇.LTR

     This First Amendment to District Cooling System Use Agreement (the “First Amendment”), dated as of June 1, 1995 (the “Effective Date”) by and between the CITY OF CHICAGO, Illinois (the “City”), a home rule unit and municipality under Article VII of the Constitution of the State of Illinois, and UNICOM THERMAL TECHNOLOGIES, INC., an Illinois corporation, formerly known as NORTHWIND INC. (the “Grantee”) and a wholly owned subsidiary of Unicom Enterprise which is 100% owned by Unicom Corporation.

WITNESSETH:

     WHEREAS, the City of Chicago and the Grantee have entered into that certain District Cooling System Use Agreement dated as of October 1, 1994 (the “Original Agreement”), which grants to the Grantee the non-exclusive right to use certain public ways of the City to construct, operate and maintain a district cooling system (the “System”); and

     WHEREAS, Exhibit 1 to the Original Agreement describes the “Initial Distribution Facilities” for the Grantee’s System and the Grantee’s “First Plant” (as those terms are defined in the Original Agreement); and

     WHEREAS, Exhibit 2 to the Original Agreement provides the Location Map of the Grantee’s System, including the Initial Distribution Facilities; and

     WHEREAS, the Grantee has now obtained approval from the City for a new chilling plant and/or ice production plant to be located at the ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and West Congress Parkway (the “Second Plant”) and desires to install additional distribution pipeline equipment, conduits, fixtures and other instrumentalities and appurtenances in the City’s public ways (the “Additional Distribution Facilities”) associated with both the First Plant and the Second Plant; and

     WHEREAS, the Grantee desires to amend the Original Exhibits to include the Second Plant and to include the Additional Distribution Facilities, as further described and depicted in Exhibits 1 and 2 attached to this First Amendment (the “Amended Exhibits”); and

     WHEREAS, the City Council of the City on May 17, 1995 approved execution of a First Amendment to the Original Agreement in substantially the form of this First Amendment, including the Amended Exhibits; and

     WHEREAS, the Grantee has changed its name from Northwind, Inc. to Unicom Thermal Technologies, Inc. and wishes to amend the Agreement to reflect this change of name; and

     WHEREAS the City and the Grantee now desire to amend the Agreement on the terms and conditions set forth below;

     NOW, THEREFORE,

     It is agreed by the parties hereto as follows:

     Section 1. The above recitals are expressly incorporated herein and made a part of this First Amendment by reference as though fully set forth therein.

     Section 2. As of the Effective Date of this First Amendment, the Old Exhibits are deemed superseded and replaced by the Amended Exhibits.

     Section 3. As of the Effective Date of this First Amendment, wherever the Original Agreement (including Section 1 and all exhibits and attachments) refers to the Grantee as meaning “Northwind, Inc.”, the Grantee shall be deemed to mean Unicom Thermal Technologies, Inc.

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     Section 4. As of the Effective Date, pursuant to Section 7.1.2(b) of the Original Agreement, Section 5.1 of the Original Agreement is hereby amended in its entirety to read as follows:

     “Section 5.1 General Compensation.

Grantee agrees to pay the City as General Compensation during each Compensation Year for the use of the Public Ways throughout the duration of this Agreement (subject to the City’s rights of adjustment set forth in Section 2.3 hereof) a sum equal to the General Compensation as set forth below. The General Compensation during the Compensation Year ending December 31, 1995 shall be the greater of $50,000 or two percent (2%) of Grantee’s Total Gross ▇▇▇▇▇▇▇▇. The General Compensation during the Compensation Year ending December 31, 1996 shall be the greater of $140,000 or two percent (2%) of Grantee’s Total Gross ▇▇▇▇▇▇▇▇. The General Compensation during the Compensation Year ending December 31, 1997 shall be the greater of $190,000 or two percent (2%) of Grantee’s Total Gross ▇▇▇▇▇▇▇▇. For each Compensation Year beginning with the 1998 Compensation Year (subject to the City’s rights of adjustment set forth in Section 2.3 hereof and to adjustments made pursuant to Section 7.1.2), the General Compensation fees shall be two percent (2%) of Total Gross ▇▇▇▇▇▇▇▇; but in no case shall the General Compensation for any Compensation Year beginning with 1998 be less than $190,000 (subject to adjustment pursuant to Section 7.1.2), adjusted for the rate of inflation during the preceding Compensation Year pursuant to the Consumer Price Index for Urban Areas.”

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     Section 5. As of the Effective Date, Section 12 of the Original Agreement shall he deemed null, void and of no further effect.

     Section 6. Grantee represents that, to the best of its knowledge, no member of the governing body of the City and no other official, officer, agent or employee of the City is employed by Grantee or has a personal financial or economic interest directly or indirectly in this Agreement or any contract or subcontract resulting therefrom or in the privileges to be granted hereunder except as may be permitted in writing by the Board of Ethics established pursuant to the Municipal Code of Chicago (Chapter 2-156). No payment, gratuity or offer of employment shall be made in connection with this ordinance by or on behalf of any contractors to the Grantee or higher tier subcontractors or anyone associated therewith, as an inducement for the award of contracts, subcontracts or orders. Any agreement entered into, negotiated or performed in violation of any of the provisions of Chapter 2-156 shall be voidable as to the City.

     Section 7. Neither Grantee nor its contractors shall be in violation of the provisions of Section 2-92-320, Chapter 2-92 of the Code. In connection herewith, Grantee has executed the applicable Certification required under the Illinois Criminal Code, 720 ILCS 5/33E-11 (1992), as amended, and under the Illinois Municipal Code, Ill. Rev. Stat. Ch. 24 § 11-42-1 (1989) (1990 Supp.).

     Section 8. It shall be the duty of Grantee, all contractors, and all officers, directors, agents, partners, and employees of Grantee to cooperate with the Inspector General in any investigation or hearing undertaken pursuant to Chapter 2-56 of the Code. Grantee shall inform all its contractors of the provision and require understanding and compliance herewith.

     Section 9. Grantee has provided copies of its latest articles of incorporation and bylaws and its certification of good standing from the Office of the Secretary of State of Illinois.

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Grantee has provided the City with the Disclosure of Ownership Interest Affidavit for the Grantee.

     Section 10. If Grantee conducts any business operations in Northern Ireland, it is hereby required that Grantee make all reasonable and good faith efforts to conduct any such business operations in Northern Ireland in accordance with the ▇▇▇▇▇▇▇▇ Principles for Northern Ireland as defined in Illinois Public Act 85-1390 (1988 Ill. Laws 3220).

     Section 11. Except as expressly modified in this First Amendment, all other terms, covenants and conditions in the Original Agreement (including exhibits and attachments) remain unchanged and all affidavits, certificates and representations in the Original Agreement (including exhibits and attachments) are deemed reaffirmed as if made as of the date hereof. Except as set forth in this First Amendment, all defined terms in the Agreement are used in the First Amendment with the same meaning that such terms have in the Original Agreement.

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     IN WITNESS WHEREOF, the City has caused this First Amendment to be duly executed in its name and behalf as of the date first written by its Commissioner of the Department of Environment, its Director of the Department of Revenue and its Commissioner of the Department of Transportation and the Grantee has signed and sealed the same on or as of the day and year first written.

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EXHIBIT 1

     The Grantee’s District Cooling System is anticipated to be constructed in the Public Ways and at the Approved Plant locations set forth below. The exact location of each component of Grantee’s Distribution Facilities shall be presented to and reviewed by the City as set forth in the Agreement on an on-going basis prior to construction and installation in order to obtain permits for construction and installation specifying the exact locations of Grantee’s Distribution Facilities.

     This Exhibit is subject to amendment pursuant to the provisions of Section 7.1.2 of the Agreement (including City Council authorization and Departmental approvals) to incorporate new Approved Plants and Additional Distribution Facilities and subject to amendment pursuant to the provisions of Section 7.1.1 of the Agreement (including Departmental approvals) to amend the locations of the Distribution Facilities based on changes in construction conditions. All amendments requiring changes in location not based on construction conditions shall require City Council authorization.

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EXHIBIT 1

8

CHICAGO, May 16, 1995

To the President and Members of the City Council:

     Your Committee on Transportation and Public Way begs leave to recommend that Your Honorable Body Pass an ordinance introduced by the Honorable Mayor ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ amending the use agreement between the City and Northwind, Incorporated originally passed by the City Council on September 14, 1994, pp. 57077-57149 of the C.J.P. Said amendment authorizes additional distribution facilities. This ordinance was referred to the Committee on April 12, 1995.

     This recommendation was concurred unanimously by a viva voce vote of the members of the Committee with no dissenting vote.

Respectfully submitted,

▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Chairman

ORDINANCE

     WHEREAS, on the 14th day of September, 1994 the City Council of the City of Chicago, Illinois (the “City”) adopted an Ordinance published in the Journal of Proceedings of the City Council at pages 57077 through 57149 authorizing the City to enter into a “District Cooling Use Agreement” (the “Original Agreement”) with Northwind, Inc., (“Grantee”), which grants to Grantee the non-exclusive right to use certain public ways of the City to construct, operate and maintain a district cooling system (the “System”); and

     WHEREAS, the City and Grantee entered into the Original Agreement as of October 1, 1994; and

     WHEREAS, Exhibit 1 to the Agreement describes the “Initial Distribution Facilities” for the Grantee’s System and the Grantee’s “First Plant” (as those terms are defined in the Original Agreement); and

     WHEREAS, Exhibit 2 to the Agreement provides the Location Map of Grantee’s System, including Initial Distribution Facilities; and

     WHEREAS, Grantee has now obtained approval from the City for a new chilling plant and/or ice production plant to be located at the ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and West Congress Parkway (the “Second Plant”) and desires to install additional distribution pipeline equipment, conduits, fixtures and other instrumentalities and appurtenances in the City’s public ways (the “Additional Distribution Facilities”) associated with both the First Plant and the Second Plant; and

     WHEREAS, Grantee desires to amend Exhibits 1 and 2 to the Original Agreement to include the Second Plant and to include Additional Distribution Facilities, as further described and depicted in Exhibit A to this Ordinance; and

     WHEREAS, the City does not object to such amendment of Exhibits 1 and 2; and

     WHEREAS, Grantee has changed its name from Northwind, Inc. to Unicom Thermal Technologies, Inc. and wishes to amend the Original Agreement to reflect this change of name; and

     WHEREAS, pursuant to Section 7.1.2 of the Original Agreement, Grantee’s minimum fees set forth in Section 5 of the Original Agreement shall be increased proportionate to the maximum capacity of the Second Plant; now, therefore,

     BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF CHICAGO:

     SECTION 1: The above recitals are expressly incorporated herein and made a part of this ordinance by reference as though fully set forth herein.

     SECTION 2: Subject to the approval of the Corporation Counsel, the Commissioner of the Department of the Environment, the Commissioner of the Department of Transportation, and the Director of the Department of Revenue are hereby authorized to enter into and execute on behalf of the City, a First Amendment to the Original Agreement (the “First Amendment”) substantially in the form attached hereto as Exhibit A, subject to such changes as such officials shall approve, their signature being conclusive evidence of their acceptance of such changes.

     SECTION 3: This Ordinance shall be in full force and effect from and after its passage.

     SECTION 4: All ordinances and resolutions, or parts thereof, in conflict with this ordinance are, to the extent of such conflict, hereby repealed.

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EXHIBIT A

     This First Amendment to District Cooling System Use Agreement (the “First Amendment”), dated as of                    , 1995 (the “Effective Date”) by and between the CITY OF CHICAGO, Illinois (the “City”), a home rule unit and municipality under Article VII of the Constitution of the State of Illinois, and UNICOM THERMAL TECHNOLOGIES, INC., an Illinois corporation, formerly known as NORTHWIND INC. (the “Grantee”) and a wholly owned subsidiary of Unicom Enterprise which is 100% owned by Unicom Corporation.

WITNESSETH:

     WHEREAS, the City of Chicago and the Grantee have entered into that certain District Cooling System Use Agreement dated as of October 1, 1994 (the “Original Agreement”), which grants to the Grantee the non-exclusive right to use certain public ways of the City to construct, operate and maintain a district cooling system (the “System”); and

     WHEREAS, Exhibit 1 to the Original Agreement describes the “Initial Distribution Facilities” for the Grantee’s System and the Grantee’s “First Plant” (as those terms arc defined in the Original Agreement); and

     WHEREAS, Exhibit 2 to the Original Agreement provides the Location Map of the Grantee’s System, including the Initial Distribution Facilities; and

     WHEREAS, the Grantee has now obtained approval from the City for a new chilling plant and/or ice production plant to be located at the ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and West Congress Parkway (the “Second Plant”) and desires to install additional distribution pipeline equipment, conduits, fixtures and other instrumentalities and appurtenances in the City’s public ways (the “Additional Distribution Facilities”) associated with both the First Plant and the Second Plant; and

3

     WHEREAS, the Grantee desires to amend the Original Exhibits to include the Second Plant and to include the Additional Distribution Facilities, as further described and depicted in Exhibits 1 and 2 attached to this First Amendment (the “Amended Exhibits”); and

     WHEREAS, the City Council of the City on                    , 1995 approved execution of a First Amendment to the Original Agreement in substantially the form of this First Amendment, including the Amended Exhibits; and

     WHEREAS, the Grantee has changed its name from Northwind, Inc. to Unicom Thermal Technologies, Inc. and wishes to amend the Agreement to reflect this change of name; and

     WHEREAS the City and the Grantee now desire to amend the Agreement on the terms and conditions set forth below;

     NOW, THEREFORE,

     It is agreed by the parties hereto as follows:

     Section 1. The above recitals are expressly incorporated herein and made a part of this First Amendment by reference as though fully set forth therein.

     Section 2. As of the Effective Date of this First Amendment, the Old Exhibits are deemed superseded and replaced by the Amended Exhibits.

     Section 3. As of the Effective Date of this First Amendment, wherever the Original Agreement (including Section 1 and all exhibits and attachments) refers to the Grantee as meaning “Northwind, Inc.”, the Grantee shall be deemed to mean Unicom Thermal Technologies, Inc.

4

     Section 4. As of the Effective Date, pursuant to Section 7.1.2(b) of the Original Agreement, Section 5.1 of the Original Agreement is hereby amended in its entirety to read as follows:

     “Section 5.1 General Compensation.

Grantee agrees to pay the City as General Compensation during each Compensation Year for the use of the Public Ways throughout the duration of this Agreement (subject to the City’s rights of adjustment set forth in Section 2.3 hereof) a sum equal to the General Compensation as set forth below. The General Compensation during the Compensation Year ending December 31, 1995 shall be the greater of $50,000 or two percent (2%) of Grantee’s Total Gross ▇▇▇▇▇▇▇▇. The General Compensation during the Compensation Year ending December 31, 1996 shall be the greater of $140,000 or two percent (2%) of Grantee’s Total Gross ▇▇▇▇▇▇▇▇. The General Compensation during the Compensation Year ending December 31, 1997 shall be the greater of $190,000 or two percent (2%) of Grantee’s Total Gross ▇▇▇▇▇▇▇▇. For each Compensation Year beginning with the 1998 Compensation Year (subject to the City’s rights of adjustment set forth in Section 2.3 hereof and to adjustments made pursuant to Section 7.1.2), the General Compensation fees shall be two percent (2%) of Total Gross ▇▇▇▇▇▇▇▇; but in no case shall the General Compensation for any Compensation Year beginning with 1998 be less than $190,000 (subject to adjustment pursuant to Section 7.1.2), adjusted for the rate of inflation during the preceding Compensation Year pursuant to the Consumer Price Index for Urban Areas.”

5

     Section 5. As of the Effective Date, Section 12 of the Original Agreement shall be deemed null, void and of no further effect.

     Section 6. The Grantee represents that, to the best of its knowledge, no member of the governing body of the City and no other official, officer, agent or employee of the City is employed by the Grantee or has a personal financial or economic interest directly or indirectly in this Agreement or any contract or subcontract resulting therefrom or in the privileges to be granted hereunder except as may be permitted in writing by the Board of Ethics established pursuant to the Municipal Code of Chicago (Chapter 2-156). No payment, gratuity or offer of employment shall be made in connection with this ordinance by or on behalf of any contractors to the Grantee or higher tier subcontractors or anyone associated therewith, as an inducement for the award of contracts, subcontracts or orders. Any agreement entered into, negotiated or performed in violation of any of the provisions of Chapter 2-156 shall be voidable as to the City.

     Section 7. Neither the Grantee nor its contractors shall be in violation of the provisions of Section 2-92-320, Chapter 2-92 of the Code. In connection herewith, the Grantee has executed the applicable Certification required under the Illinois Criminal Code, 720 ILCS 5/33E-11 (1992).

     Section 8. It shall be the duty of the Grantee, all contractors, and all officers, directors, agents, partners, and employees of the Grantee to cooperate with the Inspector General in any investigation or hearing undertaken pursuant to Chapter 2-56 of the Code. The Grantee shall inform all its contractors of the provision and require understanding and compliance herewith.

     Section 9. The Grantee has provided copies of its latest articles of incorporation and bylaws and its certification of good standing from the Office of the Secretary of State of

6

Illinois. The Grantee has provided the City with the Disclosure of Ownership Interest Affidavit for the Grantee.

     Section 10. If the Grantee conducts any business operations in Northern Ireland, it is hereby required that the Grantee make all reasonable and good faith efforts to conduct any such business operations in Northern Ireland in accordance with the ▇▇▇▇▇▇▇▇ Principles for Northern Ireland as defined in Illinois Public Act 85-1390 (1988 Ill. Laws 3220).

     Section 11. Except as expressly modified in this First Amendment, all other terms, covenants and conditions in the Original Agreement (including exhibits and attachments) remain unchanged and all affidavits, certificates and representations in the Original Agreement (including exhibits and attachments) are deemed reaffirmed as if made as of the date hereof. Except as set forth in this First Amendment, all defined terms in the Agreement are used in the First Amendment with the same meaning that such terms have in the Original Agreement.

[Signature page follows]

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     IN WITNESS WHEREOF, the City has caused this First Amendment to be duly executed in its name and behalf as of the date first written by its Commissioner of the Department of Environment, its Director of the Department of Revenue and its Commissioner of the Department of Transportation and the Grantee has signed and sealed the same on or as of the day and year first written.

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EXHIBIT 1

     The Grantee’s District Cooling System is anticipated to be constructed in the Public Ways and at the Approved Plant locations set forth below. The exact location of each component of Grantee’s Distribution Facilities shall he presented to and reviewed by the City as set forth in the Agreement on an on-going basis prior to construction and installation in order to obtain permits for construction and installation specifying the exact locations of Grantee’s Distribution Facilities.

     This Exhibit is subject to amendment pursuant to the provisions of Section 7.1.2 of the Agreement (including City Council authorization and Departmental approvals) to incorporate new Approved Plants and Additional Distribution Facilities and subject to amendment pursuant to the provisions of Section 7.1.1 of the Agreement (including Departmental approvals) to amend the locations of the Distribution Facilities based on changes

9

in construction conditions. All amendments requiring changes in location not based on construction conditions shall require City Council authorization.

10

EXHIBIT 2

11

[CITY COUNCIL SEALS AND
SIGNATURES]

Document No. PO 95-1144

12

Reclassification Of Area Shown On Map Number 2-F.

     Be It Ordained by the City Council of the City of Chicago:

     SECTION 1. That the Chicago Zoning Ordinance be amended by changing all the C3-7 Commercial Manufacturing District symbols and indications as shown on Map No. 2-F in the area bounded by:

▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇; ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇; West Congress Parkway; and South ▇▇▇▇▇▇ Drive,

to the designation of a Business Planned Development which is hereby established in the area above described, subject to such use and bulk regulations as are set forth in the Plan of Development herewith attached and made a part thereof and to no others.

     SECTION 2. This ordinance shall be in force and effect from and after its passage and due publication.

Plan of Development Statements referred to in this ordinance read as follows:

Business Planned Development Number __________

Plan Of Development

Statements.

[Property Line and Planned Development Boundary Map; Existing
Zoning Map; Existing Land-Use Map; Site/Landscape Plan;
and Building Elevation Drawings referred to in these
Plan of Development Statements printed
on pages 485 through 491
of this Journal.]

          Bulk Regulations and Data Table referred to in these Plan of Development Statements reads as follows:

Business Planned Development Number ___________

Bulk Regulations And Data Table.

Gross Site Area, 91,197 square feet (2.09 acres) equals Net Site Area, 57,937 square feet (1.33 acres) plus Area in Public Right-of-Way, 33,260 square feet (0.76 acres).

Property Line And Planned Development Boundary Map.

BUSINESS PLANNED DEVELOPMENT NO. ______

PROPERTY LINE AND PLANNED DEVELOPMENT BOUNDARY MAP

JOURNAL — CITY COUNCIL — CHICAGO

Existing Zoning Map.

BUSINESS PLANNED DEVELOPMENT NO. ____

EXISTING ZONING MAP

Existing Land - Use Map.

JOURNAL — CITY COUNCIL — CHICAGO

Site/Landscape Plan.

Building Elevations.
(Page 1 of 3)

Building Elevations.
(Page 3 of 3)

STATE OF ILLINOIS,      ss.
County of ▇▇▇▇

     I, ▇▇▇▇▇ ▇. ▇▇▇▇▇, City Clerk of the City of Chicago in the County of ▇▇▇▇ and State of Illinois, DO HEREBY CERTIFY that the annexed and foregoing is a true and correct copy of that certain ordinance now on file in my office Concerning Reclassification of Area Shown on Map Number 2-F in the area bounded by ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇; ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇; West Congress Parkway; and South ▇▇▇▇▇▇ Drive.

     I DO FURTHER CERTIFY that the said ordinance was passed by the City Council of the said City of Chicago on the second (2nd) day of May, A. D. 1995 and deposited in my office on the second (2nd) day of May A. D. 1995.

     I DO FURTHER CERTIFY that the vote on the question of the passage of the said ordinance by the said City Council was taken by yeas and nays and recorded in the Journal of the Proceedings of the said City Council, and that the result of said vote so taken was as follows, to wit: Yeas: 47, Nays: None.

     I DO FURTHER CERTIFY that the said ordinance was delivered to the Mayor of the said City of Chicago after the passage thereof by the said City Council, without delay, by the City Clerk of the said City of Chicago, and that the said Mayor failed to return the said ordinance to the said City Council with his written objections thereto at the next regular meeting of the said City Council occurring not less than five days after the passage of the said ordinance.

     I DO FURTHER CERTIFY that the said ordinance after the passage thereof by the City Council, was printed in pamphlet form, published by authority of the said City Council on the seventeenth (17th) day of May, A.D. 1995.

     I DO FURTHER CERTIFY that the original, of which the foregoing is a true copy, is entrusted to my care for safe keeping, and that I am the lawful keeper of the same.

[▇▇▇▇▇ and ▇▇▇▇▇▇, Ltd. Letterhead]

September 26, 1995

BY MESSENGER
▇▇. ▇▇▇▇ ▇▇▇▇
Unicom Thermal Technologies
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇

               In re: Second Amendment to Use Agreement

Dear ▇▇▇▇:

               Enclosed please find a copy of ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇’▇ correspondence dated September 26, 1995 together with a photocopy of the fully executed Second Amendment.

Sincerely,

▇▇▇▇ ▇. ▇▇▇▇▇▇

JJG:tc
Enclosure

[City of Chicago Letterhead]

September 26, 1995

▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
▇▇▇▇▇ and ▇▇▇▇▇▇
Two First National Plaza
Suite 400
▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇

Re: Unicom Thermal Technologies, Inc.:
Second Amendment to District Cooling System
Use Agreement

Dear ▇▇▇▇:

Enclosed is a fully executed copy of the captioned amendment.

Please feel free to call me if any questions arise in connection with the amendment.

Very truly yours,

▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Assistant Corporation Counsel

cc: ▇. ▇▇▇▇▇▇▇▇
      ▇. ▇▇▇▇▇▇▇
      ▇. ▇▇▇▇▇▇▇▇▇
      ▇. ▇▇▇▇▇▇▇
      ▇. ▇▇▇▇▇▇▇
      ▇. ▇▇▇▇▇▇▇
      ▇. ▇▇▇▇▇▇

CTM4:\2uni.let1

     This Second Amendment to District Cooling System Use Agreement (the “Second Amendment”), dated as of July 15, 1995 (the “Effective Date”) by and between the CITY OF CHICAGO, Illinois (the “City”), a home rule unit and municipality under Article VII of the Constitution of the State of Illinois, and UNICOM THERMAL TECHNOLOGIES, INC., an Illinois corporation, formerly known as NORTHWIND INC. (the “Grantee”) and a wholly owned subsidiary of Unicom Enterprise which is 100% owned by Unicom Corporation.

WITNESSETH:

     WHEREAS, the City of Chicago and the Grantee have entered into that certain District Cooling System Use Agreement dated as of October 1, 1994 (the “Original Agreement”), which grants to the Grantee the non-exclusive right to use certain public ways of the City to construct, operate and maintain a district cooling system (the “System”); and

     WHEREAS, the Original Agreement was amended pursuant to a First Amendment to District Cooling System Use Agreement dated as of June 1, 1995 (the “First Amendment and collectively with the Original Agreement, the “Current Agreement”); and

     WHEREAS, Exhibit 1 to the Current Agreement describes the “Distribution Facilities” (the “Current Distribution Facilities”) for Grantee’s System; and

     WHEREAS, Exhibit 2 to the Current Agreement provides the Location Map of the Grantee’s System, including the Current Distribution Facilities; and

     WHEREAS, the Grantee has encountered unexpected difficulties in connecting a certain customer to the First Plant (as defined in the Current Agreement) which customer has originally been intended to be connected through the Current Distribution Facilities described in said Exhibits 1 and 2 to the Current Agreement (the “Current Exhibits”); and

     WHEREAS, Grantee desires to amend the Current Exhibits to include in the Current Distribution Facilities for its System a portion of LaSalle Street south from the intersection of West ▇▇▇▇▇▇▇ Boulevard to Van Buren Street and to delete prior authorization to use portions of Financial Place from ▇▇▇▇▇▇▇ Boulevard to Van Buren Street, as further described in Exhibits 1 and 2 attached to this Second Amendment (the “New Exhibits”); and

     WHEREAS, the City desires to amend the Current Agreement to reflect certain City departmental procedures regarding underground facilities; and

     WHEREAS, the City Council of the City on July 13, 1995 approved execution of a Second Amendment to the Original Agreement in substantially the form of this Second Amendment, including the New Exhibits; and

     WHEREAS the City and the Grantee now desire to amend the Agreement on the terms and conditions set forth below;

     NOW, THEREFORE,

     It is agreed by the parties hereto as follows:

     Section 1. The above recitals are expressly incorporated herein and made a part of this Second Amendment by reference as though fully set forth therein.

     Section 2. As of the Effective Date of this Second Amendment, the Current Exhibits are deemed superseded and replaced by the New Exhibits.

     Section 3. As of the Effective Date, Section 7.6 of the Current Agreement is replaced in its entirety as follows:

          “Section 7.6 Underground Facilities Agreement. Grantee agrees to apply for, and if accepted, enter into membership in the Chicago Utility Alert Network as established by ordinance dated November 5, 1993, as amended, and the Chicago Utility Alert Network

2

Membership Agreement. Grantee agrees to pay its share of the costs and expenses pursuant to the Chicago Utility Alert Network Membership Agreement.”

     Section 4. A new Section 7.7 is added to the Current Agreement which shall read as follows:

          “Section 7.7 Board of Underground. Grantee agrees to join the Board of Underground, as established by Section ▇-▇▇▇-▇▇▇ of the Municipal Code. Grantee agrees that its work in the Public Way shall comply with the guidelines and procedures issued by the Department of Transportation for the Board of Underground, pursuant to Section ▇-▇▇▇-▇▇▇ of the Municipal Code. Consistent with and pursuant to Section ▇-▇▇▇-▇▇▇ of the Municipal Code, Grantee shall design its System to the extent practicable so as not to materially diminish or prevent access for repair or maintenance of underground facilities, whether owned by City or any third party. Conflicts regarding access to facilities shall be resolved pursuant to Board of Underground procedures to the extent practicable and required.”

     Section 5. A new paragraph (G) is added to Section 10.1 of the Current Agreement which shall read as follows:

     (G) “Such additional events of default as are specifically set forth in this Agreement.”

     Section 6. Grantee represents that, to the best of its knowledge, no member of the governing body of the City and no other official, officer, agent or employee of the City is employed by Grantee or has a personal financial or economic interest directly or indirectly in this Amendment or any contract or subcontract resulting therefrom or in the privileges to be granted hereunder except as may be permitted in writing by the Board of Ethics established pursuant to the Municipal Code of Chicago (Chapter 2-156). No payment, gratuity or offer of employment

3

shall be made in connection with this ordinance by or on behalf of any contractors to the Grantee or higher tier subcontractors or anyone associated therewith, as an inducement for the award of contracts, subcontracts or orders. Any agreement entered into, negotiated or performed in violation of any of the provisions of Chapter 2-156 shall be voidable as to the City.

     Section 7. Neither Grantee nor its contractors shall be in violation of the provisions of Section 2-92-320, Chapter 2-92 of the Code. In connection herewith, Grantee has executed the applicable Certification required under the Illinois Criminal Code, 720 ILCS 5/33E-11 (1992), as amended, and under the Illinois Municipal Code, Ill. Rev. Stat. Ch. 24, § 11-42-1 (1989) (1990 Supp.).

     Section 8. Grantee has provided copies of its latest articles of incorporation and bylaws and its certification of good standing from the Office of the Secretary of State of Illinois. Grantee has provided the City with the Disclosure of Ownership Interest Affidavit for the Grantee.

     Section 9. Except as expressly modified in this Second Amendment, all other terms, covenants and conditions in the Current Agreement (including exhibits and attachments) remain unchanged and all affidavits, certificates and representations in the Current Agreement (including exhibits and attachments) are deemed reaffirmed as if made as of the date hereof. Except as set forth in this Second Amendment, all defined terms in the Current Agreement are used in the Second Amendment with the same meaning that such terms have in the Current Agreement.

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     IN WITNESS WHEREOF, the City has caused this Second Amendment to be duly executed in its name and behalf as of the date first written by its Commissioner of the Department of Environment, its Director of the Department of Revenue and its Commissioner of the Department of Transportation and the Grantee has signed and scaled the same on or as of the day and year first written.

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EXHIBIT 1

          The Grantee’s District Cooling System is anticipated to be constructed in the Public Ways and at the Approved Plant locations set forth below. The exact location of each component of Grantee’s Distribution Facilities shall be presented to and reviewed by the City as set forth in the Agreement on an on-going basis prior to construction and installation in order to obtain permits for construction and installation specifying the exact locations of Grantee’s Distribution Facilities.

          This Exhibit is subject to amendment pursuant to the provisions of Section 7.1.2 of the Agreement (including City Council authorization and Departmental approvals) to incorporate new Approved Plants and Additional Distribution Facilities and subject to amendment pursuant to the provisions of Section 7.1.1 of the Agreement (including Departmental approvals) to amend the locations of the Distribution Facilities based on changes

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in construction conditions. All amendments requiring changes in location not based on construction conditions shall require City Council authorization.

*Changes marked to show changes from Amendment Number 1.

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CONTRACTOR’S AFFIDAVIT

The undersigned                                                                             , as                                                                             
                                                              (Name)                                                                (Title)
and on behalf of                                                                    (“Contractor”) having been duly sworn under oath certifies that:
                                                   (Business Name)

I.   DISCLOSURE OF OWNERSHIP INTERESTS

Pursuant to Chapter 2-154 of the Municipal Code of Chicago, all bidders/proposers shall provide the following information with their bid/proposal. If the question is not applicable, answer with “NA.” If the answer is none, please answer “none.”

Page 1 of 8

SECTION 1. FOR PROFIT CORPORATIONS

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NOTE: Generally, with corporations having 100 or more shareholders where no shareholder owns 10% of the shares, the requirements of this Section 1 would be satisfied by the bidder/proposer enclosing, with his bid/proposal, a copy of the corporation’s latest published annual report and/or Form 10-K if the information is contained therein.

SECTION 2. PARTNERSHIPS

If the bidder/proposer is a partnership, indicate the name of each partner and the percentage of interest of each therein:

SECTION 3. SOLE PROPRIETORSHIPS

Name(s) of Principal(s) (Print or Type)

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SECTION 4. LAND TRUSTS, BUSINESS TRUST, ESTATES & OTHER ENTITIES

SECTION 5. NOT-FOR-PROFIT CORPORATIONS

II. AFFIDAVIT OF LOCAL BUSINESS

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III. CONTRACTOR CERTIFICATION

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In completing this Section III C, authorized signatory must initial on the line nest to the appropriate subsection.

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E. ANTI-COLLUSION

The Contractor, its agent, officers or employees have not directly or indirectly entered into any agreement, participated in any collusion, or otherwise taken any action in restraint of free competitive bidding in connection with this proposal. Failure to submit this statement as part of the bid proposal will make the bid nonresponsive and not eligible for award consideration.

F. PUNISHMENT

A Contractor who makes a false statement, material to Section III (A)(2) of this certification commits a class 3 felony. 720 ILCS 5/33E - 11(b). Making a false statement concerning Section III of this certification is a Class A misdemeanor, voids the contract and allows the municipality to recover all amounts paid to the contract under the contract in a civil action. 65 ILCS 5/11 - 42.1-1.

Notes 1-5 For Section III, Contractor Certification

1. In accordance with Chapter 2-92, Section 2-92-320 of the Municipal Code of Chicago, the Contractor or a subcontractor shall be chargeable with the conduct of an affiliated entity. Business entities are affiliated if, directly or indirectly, one controls or has the power to control the other, or if a third person control or has the power to control both entities. Indicia of control include without limitation: interlocking management or ownership identity of interests among family members; shared facilities and equipment; common use of employees; or organization of a business entity following the ineligibility of a business entity under Chapter 2-92, Section 2-92-320 of the Chicago Municipal Code using substantially the same management, ownership or principals as the ineligible entity.

2. No corporation shall be barred from contracting with any unit of State or local government as a result of a conviction, under either Section 33E-3 or Section 33E-4 of Article 33 of the State of Illinois Criminal Code of 1961, as amended, of any employee or agent of such corporation if the

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employee so convicted is no longer employed by the corporation and: (1) it has been finally adjudicated not guilty or (2) if it demonstrates to the governmental entity with which it seeks to contract and that entity finds that the commission of the offense was neither authorized, requested, commanded, nor performed by a director, officer or a high managerial agent in behalf of the corporation as provided in paragraph (2) of subsection (a) of Section 5-4 of the State of Illinois Criminal Code.

3. For purposes of Section IIIA of this certification, a person commits the offense of and engages in bid-rigging when he knowingly agrees with any person who is, or but for such agreement should be, a competitor of such person concerning any bid submitted or not submitted by such person or another to a unit of State or local government when with the intent that the bid submitted or not submitted will result in the award of a contract to such person or another and he either (1) provides such person or receives from another information concerning the price or other material term or terms of the bid which would otherwise not be disclosed to a competitor in an independent noncollusive submission of bids or (2) submits a bid that is of such a price or other material term or terms that he does not intend the bid to be accepted. 720 ILCS 5/33E-3.

4. For purposes of Section IIIA of this certification, a person commits the offense of and engages in bid rotating when, pursuant to any collusive scheme or agreement with another, he engages in a pattern over time (which, for the purposes hereof, shall include at least 3 contract bids within a period of ten years, the most recent of which occurs after January 1, 1989) of submitting sealed bids to units of State or local government with the intent that the award of such bids rotates, or is distributed among, persons or business entities which submit bids on a substantial number of the same contract. 720 ILCS 5/33E-4.

5. 65 ILCS 5/11 - 42.1-1 provides that a municipality may not enter into a contract or agreement with an individual or other entity that is delinquent in the payment of any tax administered by the Illinois Department of Revenue unless the contracting party is contesting, in accordance with the procedures established by the appropriate Revenue Act its liability for the tax or the amount of the tax or unless the contracting party has entered into an agreement to pay the tax and is in compliance with the Agreement. Notwithstanding the above, the municipality may enter into the contract if the contracting authority for the municipality determines that:

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Signed and sworn to before me this                                        day of                                       , 19                    by                                                                              (Name) as                                        (Title) of                                                                              (Contractor.)

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[▇▇▇▇▇ And ▇▇▇▇▇▇, Letterhead]

February 12, 1996

BY MESSENGER

▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Unicorn Thermal Technologies, Inc.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇

     In re:     Third Amendment to District Cooling System Use Agreement

Dear Don:

     I am enclosing herewith one fully executed copy of the Third Amendment to the District Cooling System Agreement. After you have reviewed it if you have any questions please call me.

Sincerely,

▇▇▇▇ ▇. ▇▇▇▇▇▇

JJG:df
Enclosure

     This Third Amendment to District Cooling System Use Agreement (the “Third Amendment”), dated as of February 1, 1996 (the “Effective Date”) by and between the CITY OF CHICAGO, Illinois (the “City”), a home rule unit and municipality under Article VII of the Constitution of the State of Illinois, and UNICOM THERMAL TECHNOLOGIES, INC., an Illinois corporation, formerly known as NORTHWIND INC. (the “Grantee”) and a wholly owned subsidiary of Unicom Enterprise which is 100% owned by Unicom Corporation.

WITNESSETH:

     WHEREAS, the City of Chicago and the Grantee have entered into that certain District Cooling System Use Agreement dated as of October 1, 1994 (the “Original Agreement”), which grants to the Grantee the non-exclusive right to use certain public ways of the City to construct, operate and maintain a district cooling system (the “System”); and

     WHEREAS, the Original Agreement was amended pursuant to a First Amendment to District Cooling System Use Agreement dated as of June 1, 1995 (the “First Amendment and collectively with the Original Agreement, the “Current Agreement”); and

     WHEREAS, the Original Agreement was amended pursuant to a Second Amendment to District Cooling System Use Agreement dated July 15, 1995 (the “Second Amendment” and collectively with the Original Agreement and First Amendment, the “Current Agreement”); and

     WHEREAS, Exhibit 1 to the Current Agreement describes the “Distribution Facilities” (the “Current Distribution Facilities”) for Grantee’s System; and

     WHEREAS, Exhibit 2 to the Current Agreement provides the Location Map of the Grantee’s System, including the Current Distribution Facilities (Exhibit 1 and 2 to the Current Agreement are collectively referred to as the “Current Exhibits”); and

     WHEREAS, Grantee desires to amend the Current Exhibits to include in the Current Distribution Facilities for its System a portion of Franklin Street from Van Buren to ▇▇▇▇▇▇▇ Boulevard, a portion of ▇▇▇▇▇▇▇ Boulevard from Franklin Street to LaSalle Street, and a portion of Washington Boulevard from LaSalle Street to approximately 300 feet west of Franklin Street, more or less, as described in Exhibits 1 and 2 attached to this Third Amendment (the “New Exhibits”); and

     WHEREAS, the City Council of the City on January 10, 1996 approved execution of a Third Amendment to the Original Agreement in substantially the firm of this Third Amendment, including the New Exhibits; and

     WHEREAS the City and the Grantee now desire to amend the Agreement on the terms and conditions set forth below;

     NOW, THEREFORE,

     It is agreed by the parties hereto as follows:

     Section 1. The above recitals are expressly incorporated herein and made a part of this Third Amendment by reference as though fully set forth therein.

     Section 2. As of the Effective Date of this Third Amendment, the Current Exhibits are deemed superseded and replaced by the New Exhibits.

     Section 3. Grantee represents that, to the best of its knowledge, no member of the governing body of the City and no other official, officer, agent or employee of the City is employed by Grantee or has a personal financial or economic interest directly or indirectly in this Third Amendment or any contract or subcontract resulting therefrom or in the privileges to be granted hereunder except as may be permitted in writing by the Board of Ethics established

2

pursuant to the Municipal Code of Chicago (Chapter 2-156). No payment, gratuity or offer of employment shall he made in connection with this ordinance by or on behalf of any contractors to the Grantee or higher tier subcontractors or anyone associated therewith, as an inducement for the award of contracts, subcontracts or orders. Any agreement entered into, negotiated or performed in violation of any of the provisions of Chapter 2-156 shall be voidable as to the City.

     Section 4. Neither Grantee nor its contractors shall be in violation of the provisions of Section 2-92-320, Chapter 2-92 of the Code. In connection herewith, Grantee has executed the applicable Certification required under the Illinois Criminal Code, 720 ILCS 5/33E-11 (1992), as amended, and under the Illinois Municipal Code, Ill. Rev. Stat. Ch. 24, § 11-42-1 (1989) (1990 Supp.)

     Section 5. Grantee has provided copies of its latest articles of incorporation and bylaws and its certification of good standing from the Office of the Secretary of State of Illinois. Grantee has provided the City with the Disclosure of Ownership Interest Affidavit for the Grantee.

     Section 6. Except as expressly modified in this Third Amendment, all other terms, covenants and conditions in the Current Agreement (including exhibits and attachments) remain unchanged and all affidavits, certificates and representations in the Current Agreement (including exhibits and attachments) are deemed reaffirmed as if made as of the date hereof. Except as set forth in this Third Amendment, all defined terms in the Current Agreement are used in the Third Amendment with the same meaning that such terms have in the Current Agreement.

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     IN WITNESS WHEREOF, the City has caused this Third Amendment to be duly executed in its name and behalf as of the date first written by its Commissioner of the Department of Environment, its Director of the Department of Revenue and its Commissioner of the Department of Transportation and the Grantee has signed and sealed the same on or as of the day and year first written.

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EXHIBIT 1

     The Grantee’s District Cooling System is anticipated to be constructed in the Public Ways and at the Approved Plant locations set forth below. The exact location of each component of Grantee’s Distribution Facilities shall he presented to and reviewed by the City as set forth in the Agreement on an on-going basis prior to construction and installation in order to obtain permits for construction and installation specifying the exact locations of Grantee’s Distribution Facilities.

     This Exhibit is subject to amendment pursuant to the provisions of Section 7.1.2 of the Agreement (including City Council authorization and Departmental approvals) to incorporate new Approved Plants and Additional Distribution Facilities and subject to amendment pursuant to the provisions of Section 7.1.1 of the Agreement (including Departmental approvals) to amend

5

the locations of the Distribution Facilities based on changes in construction conditions. All amendments requiring changes in location not based on construction conditions shall require City Council authorization.

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[▇▇▇▇▇ and ▇▇▇▇▇▇, Ltd. Letterhead]

July 31, 1996

BY MESSENGER
▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
Unicorn Thermal Technologies
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇

               In re: Fourth Amendment to District Cooling System Use Agreement

Dear Don:

               Enclosed please find the original fully executed Fourth Amendment to District Cooling System Use Agreement. This is an important document and should be retained in your permanent records.

               Please feel free to contact me if you have any questions or comments concerning this matter.

Sincerely,

▇▇▇▇ ▇. ▇▇▇▇▇▇

JJG: tc
cc: ▇▇▇▇ ▇▇▇▇
       ▇▇▇▇ ▇▇▇▇▇▇
       ▇▇▇▇▇▇▇ ▇▇▇▇▇

     This Fourth Amendment to District Cooling System Use Agreement (the “Fourth Amendment”), dated as of April 1, 1996 (the “Effective Date”) by and between the CITY OF CHICAGO, Illinois (the “City”), a home rule unit and municipality under Article VII of the Constitution of the State of Illinois, and UNICOM THERMAL TECHNOLOGIES, INC., an Illinois corporation, formerly known as NORTHWIND INC. (the “Grantee”) and a wholly owned subsidiary of Unicom Enterprise which is 100% owned by Unicom Corporation.

WITNESSETH:

     WHEREAS, the City of Chicago and the Grantee have entered into that certain District Cooling System Use Agreement dated as of October 1, 1994 (the “Original Agreement”), which grants to the Grantee the non-exclusive right to use certain public ways of the City to construct, operate and maintain a district cooling system (the “System”); and

     WHEREAS, the Original Agreement has been amended pursuant to a First Amendment to District Cooling System Use Agreement dated as of June 1, 1995 (the “First Amendment”), a Second Amendment to District Cooling System Use Agreement dated as of July 15, 1995 (the “Second Amendment”) and a Third Amendment to District Cooling System Use Agreement dated as of February 1, 1996 (the “Third Amendment”, and collectively with the Original Agreement, the First Amendment and the Second Amendment, the “Current Agreement”); and

     WHEREAS, Exhibit 1 to the Current Agreement describes the “Distribution Facilities” (the “Current Distribution Facilities”) for Grantee’s System; and

     WHEREAS, Exhibit 2 to the Current Agreement provides the Location Map of the Grantee’s System, including the Current Distribution Facilities (Exhibit 1 and 2 to the Current Agreement are collectively referred to as the “Current Exhibits”); and

     WHEREAS, Grantee desires to amend the Current Exhibits to include in the Current Distribution Facilities for its System a portion of Franklin Street from Washington Boulevard to ▇▇▇▇▇▇▇▇ Street, a portion of Madison Street from LaSalle Street to ▇▇▇▇▇ Street and a portion of ▇▇▇▇▇▇▇ Boulevard from ▇▇▇▇▇ Street to Dearborn Street, as described in Exhibits 1 and 2 attached to this Fourth Amendment (the “New Exhibits”); and

     WHEREAS, the parties also wish to modify the insurance provision of the Current Agreement in accordance with the provisions of the Ordinance; and

     WHEREAS, the City Council of the City on March 6, 1996 approved execution of a Fourth Amendment to the Original Agreement in substantially the form of this Fourth Amendment, including the New Exhibits; and

     WHEREAS, the City and the Grantee now desire to amend the Agreement on the terms and conditions set forth below;

     NOW, THEREFORE,

     It is agreed by the parties hereto as follows:

     Section 1. The above recitals are expressly incorporated herein and made a part of this Fourth Amendment by reference as though fully set forth herein.

     Section 2. As of the Effective Date of this Fourth Amendment, the Current Exhibits are deemed superseded and replaced by the New Exhibits.

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     Section 3. As of the Effective Date of this Fourth Amendment, the provisions of Section 6.1 of the Current Agreement beginning with subparagraph (A) through the remainder of said Section shall be replaced in its entirety to read as follows:

         “A. Insurance To Be Provided

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5

6

7

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     Section 4. As of the effective date of this Fourth Amendment, Section 6.10 is deleted in its entirety and Section 6.11 shall be renumbered as Section 6.10.

     Section 5. Grantee represents that, to the best of its knowledge, no member of the governing body of the City and no other official, officer, agent or employee of the City is employed by Grantee or has a personal financial or economic interest directly or indirectly in this Fourth Amendment or any contract or subcontract resulting therefrom or in the privileges to be granted hereunder except as may be permitted in writing by the Board of Ethics established pursuant to the Municipal Code of Chicago (Chapter 2-156). No payment, gratuity or offer of employment shall be made in connection with this ordinance by or on behalf of any contractors to the Grantee or higher tier subcontractors or anyone associated therewith, as an inducement for the award of contracts, subcontracts or orders. Any agreement entered into, negotiated or performed in violation of any of the provisions of Chapter 2-156 shall be voidable as to the City.

     Section 6. Neither Grantee nor its contractors shall be in violation of the provisions of Section 2-92-320, Chapter 2-92 of the Code. In connection herewith, Grantee has executed the applicable Certification required under the Illinois Criminal Code, 720 ILCS 5/33E-11 (1992), as amended, and under the Illinois Municipal Code, Ill. Rev. Stat. Ch. 24 § 11-42-1 (1989) (1990 Supp.)

     Section 7. Grantee has provided copies of its latest articles of incorporation and bylaws and its certification of good standing from the Office of the Secretary of State of Illinois. Grantee has provided the City with the Disclosure of Ownership Interest Affidavit for the Grantee.

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     Section 8. Except as expressly modified in this Fourth Amendment, all other terms, covenants and conditions in the Current Agreement (including exhibits and attachments) remain unchanged and all affidavits, certificates and representations in the Current Agreement (including exhibits and attachments) are deemed reaffirmed as if made as of the date hereof. Except as set forth in this Fourth Amendment, all defined terms in the Current Agreement are used in the Fourth Amendment with the same meaning that such terms have in the Current Agreement.

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     IN WITNESS WHEREOF, the City has caused this Fourth Amendment to be duly executed in its name and behalf as of the date first written by its Commissioner of the Department of Environment, its Director of the Department of Revenue and its Commissioner of the Department of Transportation and the Grantee has signed and sealed the same on or as of the day and year first written.

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EXHIBIT 1

     The Grantee’s District Cooling System is anticipated to be constructed in the Public Ways and at the Approved Plant locations set forth below. The exact location of each component of Grantee’s Distribution Facilities shall be presented to and reviewed by the City as set forth in the Agreement on an on-going basis prior to construction and installation in order to obtain permits for construction and installation specifying the exact location of Grantee’s Distribution Facilities.

     This Exhibit is subject to amendment pursuant to the provisions of Section 7.1.2 of the Agreement (including City Council authorization and Departmental approvals) to incorporate new Approved Plants and Additional Distribution Facilities and subject to amendment pursuant to the provisions of Section 7.1.1 of the Agreement (including Departmental approvals) to amend

12

the locations of the Distribution Facilities based on changes in construction conditions. All amendments requiring changes in location not based on construction conditions shall require City Council authorization.

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EXHIBIT 2

Law Offices

▇▇▇▇▇ And ▇▇▇▇▇▇, Ltd.

March 12, 1996

BY MESSENGER
▇▇. ▇▇▇▇ ▇▇▇▇
Unicom Thermal Technologies
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇

     In re: Fourth Amendment to Use Agreement

Dear ▇▇▇▇:

     For your records, enclosed please find three (3) certified copies of the Ordinance approving the Fourth Amendment to Use Agreement. I have asked ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ of the Law Department to deliver the execution sets of the Fourth Amendment to my office at the earliest opportunity.

     Please feel free to contact me if you have any questions or comments.

Sincerely,

▇▇▇▇ ▇. ▇▇▇▇▇▇

JJG:tc
Enclosure

ORDINANCE

     WHEREAS, on the 14th day of September, 1994, the City Council (the “City Council”) of the City of Chicago, Illinois (the “City”) adopted an Ordinance authorizing the City to enter into a “District Cooling Use Agreement” (the “Original Agreement”) with Unicom Thermal Technologies (formerly Northwind, Inc., and referred to herein as “Grantee”), which grants to Grantee the non-exclusive right to use certain public ways of the City to construct, operate and maintain a district cooling system (the “System”); and

     WHEREAS, the City and Grantee entered into the Original Agreement as of October 1, 1994; and

     WHEREAS, on the 17th day of May, 1995, the City Council adopted an ordinance authorizing the City to enter into a “First Amendment to District Cooling System Use Agreement” (the “First Amendment”); and

     WHEREAS, the First Amendment is dated as of June 1, 1995; and

     WHEREAS, on the 13th day of July, 1995, the City Council adopted an ordinance authorizing the City to enter into a “Second Amendment to District Cooling System Use Agreement” (the “Second Amendment”); and

     WHEREAS, the Second Amendment is dated as of July 15, 1995; and

     WHEREAS, on the 10th day of January, 1996, the City Council adopted an ordinance authorizing the City to enter into a “Third Amendment to District Cooling Use Agreement (the “Third Amendment”, and collectively with the Original Agreement, the First Amendment and the Second Amendment, the “Current Agreement”); and

     WHEREAS, the Third Amendment is dated as of February 1, 1996; and

     WHEREAS, Exhibit 1 to the Current Agreement describes the “Distribution Facilities” (the “Current Distribution Facilities”) for Grantee’s System; and

     WHEREAS, Exhibit 2 to the Current Agreement provides the Location Map of the Grantee’s System including the Current Distribution Facilities; and

     WHEREAS, Grantee wishes to expand its authority to use Public Ways of the City for its System by amending Exhibits 1 and 2 to the Current Agreement to include in the Current Distribution Facilities, a portion of Franklin Street from Washington Boulevard to ▇▇▇▇▇▇▇▇ Street, a portion of Madison Street from LaSalle Street to ▇▇▇▇▇ Street and a portion of ▇▇▇▇▇▇▇ Boulevard from ▇▇▇▇▇ Street to Dearborn Street, as further described and depicted in Exhibit A to this Ordinance; and

     WHEREAS, the City does not object to such amendment of Exhibits 1 and 2 to the Current Agreement; now, therefore,

     BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF CHICAGO:

     SECTION 1: The above recitals are expressly incorporated herein and made a part of this ordinance by reference as though fully set forth herein.

     SECTION 2: Subject to the approval of the Corporation Counsel, the Commissioner of the Department of the Environment, the Commissioner of the Department of Transportation, and the Director of the Department of Revenue are hereby authorized to enter into and execute on behalf of the City, a Fourth Amendment to the District Cooling System Use Agreement (the “Fourth Amendment”) substantially in the form attached hereto as Exhibit A, subject to such changes as such officials shall approve, their signature being conclusive evidence of their acceptance of such changes. Such officials may also negotiate in the Fourth Amendment such

2

changes to the insurance terms and conditions set forth in Section 6 of the Current Agreement as shall be deemed desireable by the City’s Risk Manager.

     SECTION 3: This Ordinance shall be in full force and effect upon its passage and approval.

     SECTION 4: All ordinances and resolutions, or parts thereof, in conflict with this ordinance are, to the extent of such conflict, hereby repealed.

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EXHIBIT A

     This Fourth Amendment to District Cooling System Use Agreement (the “Fourth Amendment”), dated as of    , 1996 (the “Effective Date”) by and between the CITY OF CHICAGO, Illinois (the “City”), a home rule unit and municipality under Article VII of the Constitution of the State of Illinois, and UNICOM THERMAL TECHNOLOGIES, INC., an Illinois corporation, formerly known as NORTHWIND INC. (the “Grantee”) and a wholly owned subsidiary of Unicom Enterprise which is 100% owned by Unicom Corporation.

WITNESSETH:

     WHEREAS, the City of Chicago and the Grantee have entered into that certain District Cooling System Use Agreement dated as of October 1, 1994 (the “Original Agreement”), which grants to the Grantee the non-exclusive right to use certain public ways of the City to construct, operate and maintain a district cooling system (the “System”); and

     WHEREAS, the Original Agreement has been amended pursuant to a First Amendment to District Cooling System Use Agreement dated as of June 1, 1995 (the “First Amendment”), a Second Amendment to District Cooling System Use Agreement dated as of July 15, 1995 (the “Second Amendment”) and a Third Amendment to District Cooling System Use Agreement dated as of February 1, 1996 (the “Third Amendment”, and collectively with the Original Agreement, the First Amendment and the Second Amendment, the “Current Agreement”); and

     WHEREAS, Exhibit 1 to the Current Agreement describes the “Distribution Facilities” (the “Current Distribution Facilities”) for Grantee’s System; and

     WHEREAS, Exhibit 2 to the Current Agreement provides the Location Map of the Grantee’s System, including the Current Distribution Facilities (Exhibit 1 and 2 to the Current Agreement are collectively referred to as the “Current Exhibits”); and

     WHEREAS, Grantee desires to amend the Current Exhibits to include in the Current Distribution Facilities for its System a portion of Franklin Street from Washington Boulevard to ▇▇▇▇▇▇▇▇ Street, a portion of Madison Street from LaSalle Street to ▇▇▇▇▇ Street and a portion of ▇▇▇▇▇▇▇ Boulevard from ▇▇▇▇▇ Street to Dearborn Street, as described in Exhibits 1 and 2 attached to this Fourth Amendment (the “New Exhibits”); and

     WHEREAS, the City Council of the City on    , 1996 approved execution of a Fourth Amendment to the Original Agreement in substantially the form of this Fourth Amendment, including the New Exhibits; and

     WHEREAS the City and the Grantee now desire to amend the Agreement on the terms and conditions set forth below;

     NOW, THEREFORE,

     It is agreed by the parties hereto as follows:

     Section 1. The above recitals are expressly incorporated herein and made a part of this Fourth Amendment by reference as though fully set forth therein.

     Section 2. As of the Effective Date of this Fourth Amendment, the Current Exhibits are deemed superseded and replaced by the New Exhibits.

     Section 3. Grantee represents that, to the best of its knowledge, no member of the governing body of the City and no other official, officer, agent or employee of the City is employed by Grantee or has a personal financial or economic interest directly or indirectly in this Fourth Amendment or any contract or subcontract resulting therefrom or in the privileges to be

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granted hereunder except as may be permitted in writing by the Board of Ethics established pursuant to the Municipal Code of Chicago (Chapter 2-156). No payment, gratuity or offer of employment shall be made in connection with this ordinance by or on behalf of any contractors to the Grantee or higher tier subcontractors or anyone associated therewith, as an inducement for the award of contracts, subcontracts or orders. Any agreement entered into, negotiated or performed in violation of any of the provisions of Chapter 2-156 shall be voidable as to the City.

     Section 4. Neither Grantee nor its contractors shall be in violation of the provisions of Section 2-92-320, Chapter 2-92 of the Code. In connection herewith, Grantee has executed the applicable Certification required under the Illinois Criminal Code, 720 ILCS 5/33E-11 (1992), as amended, and under the Illinois Municipal Code, Ill. Rev. Stat. Ch. 24, § 11-42-1 (1989) (1990 Supp.)

     Section 5. Grantee has provided copies of its latest articles of incorporation and bylaws and its certification of good standing from the Office of the Secretary of State of Illinois. Grantee has provided the City with the Disclosure of Ownership Interest Affidavit for the Grantee.

     Section 6. Except as expressly modified in this Fourth Amendment, all other terms, covenants and conditions in the Current Agreement (including exhibits and attachments) remain unchanged and all affidavits, certificates and representations in the Current Agreement (including exhibits and attachments) are deemed reaffirmed as if made as of the date hereof. Except as set forth in this Fourth Amendment, all defined terms in the Current Agreement are used in the Fourth Amendment with the same meaning that such terms have in the Current Agreement.

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     IN WITNESS WHEREOF, the City has caused this Fourth Amendment to be duly executed in its name and behalf as of the date first written by its Commissioner of the Department of Environment, its Director of the Department of Revenue and its Commissioner of the Department of Transportation and the Grantee has signed and sealed the same on or as of the day and year first written.

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EXHIBIT 1

     The Grantee’s District Cooling System is anticipated to be constructed in the Public Ways and at the Approved Plant locations set forth below. The exact location of each component of Grantee’s Distribution Facilities shall be presented to and reviewed by the City as set forth in the Agreement on an on-going basis prior to construction and installation in order to obtain permits for construction and installation specifying the exact locations of Grantee’s Distribution Facilities.

     This Exhibit is subject to amendment pursuant to the provisions of Section 7.1.2 of the Agreement (including City Council authorization and Departmental approvals) to incorporate new Approved Plants and Additional Distribution Facilities and subject to amendment pursuant to the provisions of Section 7.1.1 of the Agreement (including Departmental approvals) to amend

the locations of the Distribution Facilities based on changes in construction conditions. All amendments requiring changes in location not based on construction conditions shall require City Council authorization.

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EXHIBIT 2

Document No. 0 96²⁵³

PASSED by the City Council of the City of
Chicago and deposited in the office of the
City Clerk of said City

MAR 6, 1996

     I, ▇▇▇▇▇ ▇. ▇▇▇▇▇, City Clerk of the City of Chicago in the County of ▇▇▇▇ and State of Illinois, DO HEREBY CERTIFY that the annexed and foregoing is a true and correct copy of that certain ordinance now on file in my office concerning authorization for execution of fourth amendment to District Cooling System Use Agreement with Unicom Thermal Technologies (formerly Northwind, Incorporated).

     I DO FURTHER CERTIFY that the said ordinance was passed by the City Council of the said City of Chicago on the sixth (6th) day of March, A.D. 19    and deposited in my office on the sixth (6th) day of March, A.D. 1996.

     I DO FURTHER CERTIFY that the vote on the question of the passage of the said ordinance by the said City Council was taken by yeas and nays and recorded in the Journal of the Proceedings of the said City Council, and that the result of said vote so taken was as follows, to wit: Yeas 49, Nays None.

     I DO FURTHER CERTIFY that the said ordinance was delivered to the Mayor of the said City of Chicago after the passage thereof by the said City Council, without delay, by the City Clerk of the said City of Chicago and that the said Mayor did approve and sign the said ordinance on the sixth (6th) day of March, A.D. 1996.

     I DO FURTHER CERTIFY that the original, of which the foregoing is a true copy, is entrusted to my care for safe keeping, and that I am the lawful keeper of the same.

     This Fifth Amendment to District Cooling System Use Agreement (the “Fifth Amendment”), dated as of October 1, 1996 (the “Effective Date”) by and between the CITY OF CHICAGO, Illinois (the “City”), a home rule unit and municipality under Article VII of the Constitution of the State of Illinois, and UNICOM THERMAL TECHNOLOGIES INC., an Illinois corporation, formerly known as NORTHWIND INC. (the “Grantee”) and a wholly owned subsidiary of Unicom Enterprise which is 100% owned by Unicom Corporation.

WITNESSETH:

     WHEREAS, the City of Chicago and the Grantee have entered into that certain District Cooling System Use Agreement dated as of October l, 1994 (the “Original Agreement”), which grants to the Grantee the non-exclusive right to use certain public ways of the City to construct, operate and maintain a district cooling system (the “System”); and

     WHEREAS, the Original Agreement has been amended pursuant to a First Amendment to District Cooling System Use Agreement dated as of June 1, 1995 (the “First Amendment”), a Second Amendment to District Cooling System Use Agreement dated as of July 15, 1995 (the “Second Amendment”), a Third Amendment to District Cooling System Use Agreement dated as of February l, 1996 (the “Third Amendment”), and a Fourth Amendment to District Cooling System Use Agreement dated as of April 1, 1996 (the “Fourth Amendment”, and collectively with the Original Agreement, the First Amendment, the Second Amendment, the Third Amendment and the Fourth Amendment, the “Current Agreement”); and

     WHEREAS, Exhibit 1 to the Current Agreement describes the “Distribution Facilities” (the “Current Distribution Facilities”) for Grantee’s System; and

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     WHEREAS, Exhibit 2 to the Current Agreement provides the Location Map of the Grantee’s System, including the Current Distribution Facilities (Exhibit 1 and 2 to the Current Agreement are collectively referred to as the “Current Exhibits”); and

     WHEREAS, Grantee desires to amend the Current Exhibits to include in the Current Distribution Facilities for its System a portion of LaSalle Street from Washington Boulevard to Lake Street as described in Exhibits 1 and 2 attached to this Fifth Amendment (the “New Exhibits”); and

     WHEREAS, the City Council of the City on April 16, 1996 approved execution of a Fifth Amendment to the Original Agreement in substantially the form of this Fifth Amendment, including the New Exhibits; and

     WHEREAS, the City and the Grantee now desire to amend the Agreement on the terms and conditions set forth below;

     NOW, THEREFORE,

     It is agreed by the parties hereto as follows:

     Section l. The above recitals are expressly incorporated herein and made a part of this Fifth Amendment by reference as though fully set forth therein.

     Section 2. As of the Effective Date of this Fifth Amendment, the Current Exhibits are deemed superseded and replaced by the New Exhibits; provided, however, that no encroachment on, or interference with, access to underground facilities owned or controlled by the City (including but not limited to installation of facilities within a radius of 10 feet of an entrance to the Chicago Freight Tunnels or the Chicago Trolley Tunnels) or third parties, shall be deemed authorized or permitted by this Fifth Amendment nor, from and after June 1, 1996, authorized or permitted by the Current Agreement (except for Grantee’s facilities authorized by

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the Third Amendment and actually installed with proper City permit prior to June 1, 1996) Any portion of Grantee’s System which now or in the future violates the preceding sentence shall be removed promptly as required by the City’s Commissioner of Environment or by its Commissioner of Transportation or Grantee shall be deemed in material breach of the Current Agreement, as amended by this Fifth Amendment. Any use of the Chicago Freight Tunnels or the Chicago Trolley Tunnel continues to require separate prior authorization from City Council.

     Section 3. Grantee represents that, to the best of its knowledge, no member of the governing body of the City and no other official, officer, agent or employee of the City is employed by Grantee or has a personal financial or economic interest directly or indirectly in this Fifth Amendment or any contract or subcontract resulting therefrom or in the privileges to be granted hereunder except as may be permitted in writing by the Board of Ethics established pursuant to the Municipal Code of Chicago (Chapter 2-156). No payment, gratuity or offer of employment shall be made in connection with this ordinance by or on behalf of any contractors to the Grantee or higher tier subcontractors or anyone associated therewith, as an inducement for the award of contracts, subcontracts or orders. Any agreement entered into, negotiated or performed in violation of any of the provisions of Chapter 2-156 shall be voidable as to the City.

     Section 4. Neither Grantee nor its contractors shall be in violation of the provisions of Section 2-92-320, Chapter 2-92 of the Code. In connection herewith, Grantee has executed the applicable Certification required under the Illinois Criminal Code, 720 ILCS 5/33E-11 (1994 State Bar Edition), as amended, and under the Illinois Municipal Code, 65 ILCS 5/l-1 et seq., (1994 State Bar Edition).

     Section 5. Grantee has provided copies of its latest articles of incorporation and bylaws and its certification of good standing from the Office of the Secretary of State of Illinois.

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     Grantee has provided the City with the Disclosure of Ownership Interest Affidavit for the Grantee.

     Section 6. Except as expressly modified in this Fifth Amendment, all other terms, covenants and conditions in the Current Agreement (including exhibits and attachments) remain unchanged and all affidavits, certificates and representations in the Current Agreement (including exhibits and attachments) are deemed reaffirmed as if made as of the date hereof. Except as set forth in this Fifth Amendment, all defined terms in the Current Agreement are used in the Fifth Amendment with the same meaning that such terms have in the Current Agreement.

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     IN WITNESS WHEREOF, the City has caused this Fifth Amendment to be duly executed in its name and behalf as of the date first written by its Commissioner of the Department of Environment, its Director of the Department of Revenue and its Commissioner of the Department of Transportation and the Grantee has signed and scaled the same on or as of the day and year first written.

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EXHIBIT I

     The Grantee’s District Cooling System is anticipated to be constructed in the Public Ways and at the Approved Plant locations set forth below. The exact location of each component of Grantee’s Distribution Facilities shall be presented to and reviewed by the City as set forth in the Agreement on an on-going basis prior to construction and installation in order to obtain permits for construction and installation specifying the exact location of Grantee’s Distribution Facilities.

     This Exhibit is subject to amendment pursuant to the provisions of Section 7.1.2 of the Agreement (including City Council authorization and Departmental approvals) to incorporate new Approved Plants and Additional Distribution Facilities and subject to amendment pursuant to the provisions of Section 7.1.1 of the Agreement (including Departmental approvals) to amend the locations of the Distribution Facilities based on changes in construction conditions. All amendments requiring changes in location not based on construction conditions shall require City Council authorization.

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EXHIBIT 2

Amendment 5

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[LETTERHEAD OF ▇▇▇▇▇ & ▇▇▇▇▇▇]

▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇
Unicom Thermal Technologies
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇

                    In re: Fifth Amendment to Use Agreement

Dear ▇▇▇▇:

                    Enclosed please find one (1) certified copy and two (2) non-certified copies of the Ordinance adopted on April 16, 1996 approving the execution of the Fifth Amendment.

                    Please feel free to contact me if you have any questions or comments.

JJG:tc
Enclosure

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ORDINANCE

                    WHEREAS, on the 14th day of September, 1994, the City Council (the “City Council”) of the City of Chicago, Illinois (the “City”) adopted an Ordinance authorizing the City to enter into a “District Cooling Use Agreement” (the “Original Agreement”) with Unicom Thermal Technologies (formerly Northwind, Inc., and referred to herein as “Grantee”), which grants to Grantee the non-exclusive right to use certain public ways of the City to construct, operate and maintain a district cooling system (the “System”); and

                    WHEREAS, the City and Grantee entered into the Original Agreement as of October 1, 1994, and

                    WHEREAS, on the 17th day of May, 1995, the City Council adopted an ordinance authorizing the City to enter into a “First Amendment to District Cooling System Use Agreement” (the “First Amendment”), and

                    WHEREAS, the First Amendment is dated as of June 1, 1995, and

                    WHEREAS, on the 13th day of July, 1995, the City Council adopted an ordinance authorizing the City to enter into a “Second Amendment to District Cooling System Use Agreement” (the “Second Amendment”); and

                    WHEREAS, the Second Amendment is dated as of July 15, 1995; and

                    WHEREAS, on the 10th day of January, 1996, the City Council adopted an ordinance authorizing the City to enter into a “Third Amendment to District Cooling Use Agreement” (the “Third Amendment”); and

                    WHEREAS, the Third Amendment is dated as of February 1, 1996, and

                    WHEREAS, on the 6th day of March, 1996, the City Council adopted an ordinance authorizing the City to enter into a “Fourth Amendment to District Cooling System

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Use Agreement” (the “Fourth Amendment”, and collectively with the Original Agreement, the First Amendment, the Second Amendment, the Third Amendment and the Fourth Amendment the “Current Agreement”); and

                    WHEREAS, the Fourth Amendment is dated as of April 1, 1996; and

                    WHEREAS, Exhibit 1 to the Current Agreement describes the “Distribution Facilities” (the “Current Distribution Facilities”) for Grantee’s System; and

                    WHEREAS, Exhibit 2 to the Current Agreement provides the Location Map of the Grantee’s System including the Current Distribution Facilities; and

                    WHEREAS, Grantee wishes to expand its authority to use Public Ways of the City for its System by amending Exhibits 1 and 2 to the Current Agreement to include in the Current Distribution Facilities, a portion of LaSalle Street from Washington Boulevard to Lake Street as further described and depicted in Exhibit A to this Ordinance, and

                    WHEREAS, the City does not object to such amendment of Exhibits 1 and 2 to the Current Agreement, now, therefore,

                    BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF CHICAGO:

                    SECTION 1: The above recitals are expressly incorporated herein and made a part of this ordinance by reference as though fully set forth herein.

                    SECTION 2: Subject to the approval of the Corporation Counsel, the Commissioner of the Department of the Environment, the Commissioner of the Department of Transportation, and the Director of the Department of Revenue are hereby authorized to enter into and execute on behalf of the City, a Fifth Amendment to the District Cooling System Use Agreement (the “Fifth Amendment”) substantially in the form attached hereto as Exhibit A,

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subject to such changes as such officials shall approve, their signature being conclusive evidence of their acceptance of such changes.

                    SECTION 3: This Ordinance shall be in full force and effect upon its passage and approval.

                    SECTION 4: All ordinances and resolutions, or parts thereof, in conflict with this ordinance are, to the extent of such conflict, hereby repealed.

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EXHIBIT A

                    This Fifth Amendment to District Cooling System Use Agreement (the “Fifth Amendment”), dated as of                     , 1996 (the “Effective Date”) by and between the CITY OF CHICAGO, Illinois (the “City”), a home rule unit and municipality under Article VII of the Constitution of the State of Illinois, and UNICOM THERMAL TECHNOLOGIES. INC., an Illinois corporation, formerly known as NORTHWIND INC. (the “Grantee”) and a wholly owned subsidiary of Unicom Enterprise which is 100% owned by Unicom Corporation.

WITNESSETH:

                    WHEREAS, the City of Chicago and the Grantee have entered into that certain District Cooling System Use Agreement dated as of October 1, 1994 (the “Original Agreement”), which grants to the Grantee the non-exclusive right to use certain public ways of the City to construct, operate and maintain a district cooling system (the “System”); and

                    WHEREAS, the Original Agreement has been amended pursuant to a First Amendment to District Cooling System Use Agreement dated as of June 1, 1995 (the “First Amendment”), a Second Amendment to District Cooling System Use Agreement dated as of July 15, 1995 (the “Second Amendment”), a Third Amendment to District Cooling System Use Agreement dated as of February 1, 1996 (the “Third Amendment”), and a Fourth Amendment to District Cooling System Use Agreement dated as of April 1, 1996 (the “Fourth Amendment”, and collectively with the Original Agreement, the First Amendment, the Second Amendment, the Third Amendment and the Fourth Amendment, the “Current Agreement”); and

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                    WHEREAS, Exhibit 1 to the Current Agreement describes the “Distribution Facilities” (the “Current Distribution Facilities”) for Grantee’s System; and

                    WHEREAS, Exhibit 2 to the Current Agreement provides the Location Map of the Grantee’s System, including the Current Distribution Facilities (Exhibit 1 and 2 to the Current Agreement are collectively referred to as the “Current Exhibits”); and

                    WHEREAS, Grantee desires to amend the Current Exhibits to include in the Current Distribution Facilities for its System a portion of LaSalle Street from Washington Boulevard to Lake Street as described in Exhibits 1 and 2 attached to this Fifth Amendment (the “New Exhibits”); and

                    WHEREAS, the City Council of the City on                       , 1996 approved execution of a Fifth Amendment to the Original Agreement in substantially the form of this Fifth Amendment, including the New Exhibits, and

                    WHEREAS, the City and the Grantee now desire to amend the Agreement on the terms and conditions set forth below,

                    NOW, THEREFORE,

                    It is agreed by the parties hereto as follows:

                    Section 1. The above recitals are expressly incorporated herein and made a part of this Fifth Amendment by reference as though fully set forth therein.

                    Section 2. As of the Effective Date of this Fifth Amendment, the Current Exhibits are deemed superseded and replaced by the New Exhibits.

                    Section 3. Grantee represents that, to the best of its knowledge, no member of the governing body of the City and no other official, officer, agent or employee of the City is employed by Grantee or has a personal financial or economic interest directly or indirectly in this

13

Fifth Amendment or any contract or subcontract resulting therefrom or in the privileges to be granted hereunder except as may be permitted in writing by the Board of Ethics established pursuant to the Municipal Code of Chicago (Chapter 2-156). No payment, gratuity or offer of employment shall be made in connection with this ordinance by or on behalf of any contractors to the Grantee or higher tier subcontractors or anyone associated therewith, as an inducement for the award of contracts, subcontracts or orders. Any agreement entered into, negotiated or performed in violation of any of the provisions of Chapter 2-156 shall be voidable as to the City.

                    Section 4. Neither Grantee nor its contractors shall be in violation of the provisions of Section 2-92-320, Chapter 2-92 of the Code. In connection herewith, Grantee has executed the applicable Certification required under the Illinois Criminal Code, 720 ILCS 5/33E-11 (1992), as amended, and under the Illinois Municipal Code, Ill. Rev. Stat. Ch. 24 § 11-42-1 (1989) (1990 Supp.)

                    Section 5. Grantee has provided copies of its latest articles of incorporation and bylaws and its certification of good standing from the Office of the Secretary of State of Illinois. Grantee has provided the City with the Disclosure of Ownership Interest Affidavit for the Grantee.

                    Section 6. Except as expressly modified in this Fifth Amendment, all other terms, covenants and conditions in the Current Agreement (including exhibits and attachments) remain unchanged and all affidavits, certificates and representations in the Current Agreement (including exhibits and attachments) are deemed reaffirmed as if made as of the date hereof. Except as set forth in this Fifth Amendment, all defined terms in the Current Agreement are used in the Fifth Amendment with the same meaning that such terms have in the Current Agreement.

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                    IN WITNESS WHEREOF, the City has caused this Fifth Amendment to be duly executed in its name and behalf as of the date first written by its Commissioner of the Department of Environment, its Director of the Department of Revenue and its Commissioner of the Department of Transportation and the Grantee has signed and sealed the same on or as of the day and year first written.

15

EXHIBIT 1

     The Grantee’s District Cooling System is anticipated to be constructed in the Public Ways and at the Approved Plant locations set forth below. The exact location of each component of Grantee’s Distribution Facilities shall be presented to and reviewed by the City as set forth in the Agreement on an on-going basis prior to construction and installation in order to obtain permits for construction and installation specifying the exact location of Grantee’s Distribution Facilities.

     This Exhibit is subject to amendment pursuant to the provisions of Section 7.1.2 of the Agreement (including City Council authorization and Departmental approvals) to incorporate new Approved Plants and Additional Distribution Facilities and subject to amendment pursuant to the provisions of Section 7.1.1 of the Agreement (including Departmental approvals) to amend the locations of the Distribution Facilities based on changes

16

in construction conditions. All amendments requiring changes in location not based on construction conditions shall require City Council authorization.

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     Unicom Thermal Technologies, Inc. is a wholly owned subsidiary of Unicom Enterprises, Inc.

     Unicom Enterprises, Inc. is a wholly owned subsidiary of Unicom Corporation.

     Unicom Corporation is a New York Stock Exchange traded public company.

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EXHIBIT 2

19

     Unicom Thermal Technologies, Inc. is a wholly owned subsidiary of Unicom Enterprises, Inc.

     Unicom Enterprises, Inc. is a wholly owned subsidiary of Unicom Corporation.

     Unicom Corporation is a New York Stock Exchange traded public company.

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DISCLOSURE OF OWNERSHIP INTEREST

Pursuant to Chapter ▇-▇▇▇-▇▇▇, ▇-▇▇▇-▇▇▇, ▇-▇▇▇-▇▇▇ and ▇-▇▇▇-▇▇▇ of the Municipal Code of the City of Chicago, all grantees/ proposers shall provide the following information with their proposal. Notwithstanding, the Corporation Counsel may require an additional information which is reasonably intended to achieve full disclosure of ownership interests from grantee or proposer. Every question must be answered. If the question is not applicable, answer with “NA.” If the answer is none, please answer “None.” Note: The person preparing Section I, II, III, IV or V of this statement must sign the bottom of Page 4 before a Notary Public.

*Each Joint Venture Partner must submit a completed Disclosure of Ownership Interest.

SECTION 1 — FOR PROFIT CORPORATIONS

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DISCLOSURE OF OWNERSHIP INTEREST

     If “yes,” submit a Disclosure of Ownership Interests form for each of said corporations.

NOTE: Generally, with corporations having 100 or more shareholders where no shareholders own 10% of the share, the requirements of this Section I would be satisfied by the Grantee/Proposer enclosing, with his proposal, a copy of the corporation’s latest published annual report and/or Form 10-K if the information is contained therein.

SECTION II — PARTNERSHIPS

N/A

     If the grantee/proposer is a partnership, indicate the name of each partner and the percentage of interest of each therein:

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DISCLOSURE OF OWNERSHIP INTEREST

SECTION III — SOLE PROPRIETORSHIPS

N/A

     YES o NO o If NO, complete items b and c of this Section III.

Name(s) of Principal(s) (Print or Type)

SECTION IV — LAND TRUSTS, BUSINESS TRUSTS, ESTATES & OTHER ENTITIES

If the grantee/proposer is a land trust, business trust, estate or other similar commercial or legal entity, identify any representative, person or entity holding legal title as well as each beneficiary in whose behalf title is held, including the name, address and percentage of interest of each beneficiary: