FIRST AMENDMENT TO PROJECT DEVELOPMENT AGREEMENT BETWEEN TENNESSEE VALLEY AGRI- ENERGY LLC AND DELTA-T CORPORATION
EXHIBIT 10.9
FIRST AMENDMENT TO PROJECT DEVELOPMENT AGREEMENT
BETWEEN
TENNESSEE VALLEY AGRI-ENERGY LLC
AND
DELTA-T CORPORATION
This First Amendment to Project Development Agreement (“Amendment”) is entered into this 5th day of June, 2007 by and between Delta-T Corporation (“DELTA-T”), and Tennessee Valley Agri-Energy, LLC (“Client”), which parties may be referred to individually as a “Party” or jointly as the “Parties.”
WITNESSETH
WHEREAS, Delta-T and Client executed a Project Development Agreement (“Agreement”) on July 28, 2006, and;
WHEREAS, both Parties wish to amend the Agreement in accordance with Article 12.6.
NOW THEREFORE, IN CONSIDERATION of the mutual terms and conditions of this Agreement, Client and DELTA-T agree as follows:
1. Article 1 of the Agreement is supplemented as follows:
1.1 Basic Project Development Services: DELTA-T shall:
* * *
1.1.8 Provide a basic process engineering package suitable for estimating construction cost by others. (See Exhibit A attached to this Amendment).
1.1.9 Support Client’s selected construction partner in the preparation of a lump sum, fixed fee EPC price.
1.1.10 Provide to Client’s selected construction partner a fixed fee for Engineering, Procurement and Technology Licensing as defined by the Division of Responsibilities (to be determined).
2. Article 3 of the Agreement is deleted in its entirety and replaced with the following:
ARTICLE 3
COMPENSATION
3.1 Project Development Services: For the services described in Section 1.1 above of the Agreement and as supplemented herein, Client shall pay DELTA-T a fee equal to $825,000.00. Client has previously paid DELTA-T $75,000.00 of such fee. Client shall pay to DELTA-T $525,000.00 within ten (10) days of signing this Agreement and the remaining $225,000.00 shall be paid to DELTA-T within ten (10) days of completion of the basic process engineering package (see Exhibit A attached to this Amendment).
3.2 Travel and Related Expenses: Client shall bear the cost of all reasonable travel, room and board and related expenses incurred in connection with providing on site services to the extent provided under Article 1 above, with reimbursement based on actual costs. Client shall pay DELTA-T’s reasonable costs incurred in connection with all other such expenses incurred with Client’s prior consent, except that DELTA-T will be responsible for one site visit by one person without charge to Client.
3.3 Late Payment Penalty: Client shall pay DELTA-T a late charge at the lesser of 1% per month or the highest amount permitted by applicable law on all payments past due.
3. Article 6 of the Agreement is supplemented as follows:
f. The one-time technology license fee for the Plant shall be $2.2 million payable by Client to DELTA-T, with 50% payable within ten (10) days of signing the License Agreement, 30% payable at mechanical completion, and the remaining 20% upon completion of the performance test. The above quoted fee is subject to change if a definitive EPC or EPT Agreement is not executed within six (6) months of this Amendment.
4. Article 7 of the Agreement is deleted in its entirety and replaced with the following:
EPC CONTRACTOR FOR THE PLANT
Client may investigate entering into an Engineering, Procurement, and Construction Agreement for the construction of the entire Plan (“EPC Agreement”) with parties other than DELTA-T provided the parties are not competitors of DELTA-T as defined in Exhibit B attached to this Amendment. Client has selected Panattoni Construction, Inc. as its EPC contractor for the Plant. In the event that Client does not execute a final EPC Agreement for the construction of the Plant with Panattoni Construction, Inc., Client and DELTA-T shall mutually agree on the EPC contractor, agreement not to be unreasonably withheld.
5. All other terms of the Agreement remain in full force and effect.
2
DELTA-T CORPORATION
Confidential Information
IN WITNESS whereof the Parties have executed this Amendment by their authorized representatives as of the date first written above.
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DELTA-T CORPORATION |
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TENNESSEE VALLEY AGRI-ENERGY LLC |
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Title: |
VP Project Development |
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Title: |
Chairman/President |
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EXHIBIT A
SCHEDULE A
DESIGN PACKAGE
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VOLUME 1 |
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SECTION A |
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SYSTEM DESIGN SPECIFICATION |
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SECTION B |
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TECHNICAL SPECIFICATIONS |
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1000 Piping |
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1300 DDGS Handling, Storage & Loadout |
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1400 DDGS Dryer |
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1500 Grain Handling and Milling |
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2000 Shell and Tube Heat Exchangers |
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2100 Plate and Frame Heat Exchangers |
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2200 Centrifugal Chillers |
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2300 Package Boiler |
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2400 Regenerative Thermal Oxidizer |
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2600 Cooling Tower |
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3000 Centrifugal Pumps |
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3100 Metering Pumps |
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3300 Air Compressors |
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3400 Agitators |
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3500 Low Voltage Electric Motors |
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3600 Med. Voltage Electric Motors |
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3700 Decanter Centrifuge |
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4000 Field Fabricated Tanks |
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4100 Shop Fabricated Tanks |
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4200 HDPE Shop Fabricated Tanks |
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5000 Columns and Pressure Vessels |
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5100 Column Internals |
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5200 Column Internal Installation |
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6100 Instrumentation |
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6200 Control Valves |
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6300 Manual Valves |
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7000 Equipment Installation |
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7100 Electrical/Instrument Installation |
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8000 Plant Control Narrative |
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9000 Fire Protection |
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SECTION C |
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EQUIPMENT DATA SHEETS |
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1. Agitators |
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2. Air Compressors |
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3. Boilers |
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4. Centrifuges |
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5. Chillers |
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6. Column Internals |
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7. Columns & Pressure Vessels |
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8. Cooling Tower |
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9. Desiccant and Ballast |
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10. Filters |
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11. Heat Exchangers (P&F) |
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12. Heat Exchangers (S&T) |
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13. Pumps |
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14. Tanks |
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15. Regenerative Thermal Oxidizer |
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VOLUME 2 |
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SECTION D |
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LISTS |
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1. Line List |
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2. Instrument List |
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3. Valve List |
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4. Equipment List |
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5. Motor List |
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6. Document List |
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VOLUME 3 |
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SECTION E |
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P&IDS |
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SECTION F |
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PROCESS EQUIPMENT DRAWINGS |
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1. Classifier Strainer |
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2. Columns and Pressure Vessels |
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3. Heat Exchangers (Shell and Tube) |
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4. Tanks |
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5. Mix Tank Plug Auger |
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SECTION G |
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GENERAL ARRANGEMENT DRAWINGS |
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1. Fermentation |
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2. Main Process Building |
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3. Distillation and Dehydration |
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4. Evaporation |
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5. Boiler |
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SECTION H |
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ELECTRICAL SINGLE LINE DIAGRAMS |
5
EXHIBIT B
COMPETITORS OF DELTA-T
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Magnin-Interis |
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Abengoa BioEnergy |
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International, Inc. |
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Agrol Biotechnologies Ltd. |
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Lurgi PSI Inc. |
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Ambitech Engineering Corporation |
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▇▇▇▇▇▇▇ &
Company |
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AMG Engineering |
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Bio-Process Innovation |
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Process Plus,
LLC |
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Bio-Renewable Group |
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Associates International |
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Broin & Associates, Inc. |
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Ro-Tech
Incorporated |
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▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ |
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SNC-Lavalin
Group |
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Chematur Engineering & ▇▇▇▇▇▇▇▇▇ |
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Southeastern
Energy Development, Inc. |
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Dick Engineering Inc. |
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Technip |
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MECS, Inc. |
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Vogelbusch USA,
Inc. |
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▇▇▇▇▇, Inc. |
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Wave Zeal Ltd. |
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▇▇▇▇▇▇ Group Inc |
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Washington Group
International |
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ICM, Inc. |
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Any individual, group or company that performs, on the date of the License or during its term, (a) consulting or engineering related to the design of alcohol process technology and/or (b) design/build services for existing and prospective alcohol plants. |
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