Exhibit 10.11.3
SECOND AMENDMENT
TO
POWER PURCHASE AGREEMENT
_________________
This SECOND AMENDMENT, dated as of March 1, 1988 ("Second
Amendment"), to the Power Purchase Agreement, dated March 10,
1986, between O'Brien Energy Systems, Inc. ("Seller") and Jersey
Central Power & Light Company ("JCP&L").
W I T N E S S E T H :
WHEREAS, the Power Purchase Agreement provides for the
purchase by JCP&L of the capacity and energy from Seller's
Cogeneration Facility with a nameplate rating of 52 MW/Hr. to be
constructed by Seller at the Newark Boxboard plant in Newark, New
Jersey;
WHEREAS, by letter agreement dated June 2, 1986 ("First
Amendment"), the Parties have amended the Power Purchase
Agreement in certain respects (the Power Purchase Agreement, as
so amended by the First Amendment being hereinafter referred to
as the "Agreement");
WHEREAS, Seller has advised JCP&L that construction of the
Facility has been delayed and has requested that the Date of
Initial Commercial Operation as provided in the Agreement
therefore be extended;
WHEREAS, JCP&L is willing to extend the Date of Initial
Commercial Operation as requested by Seller, subject, however, to
the terms and conditions hereof; and
WHEREAS, the Parties desire to amend the Agreement in
certain other respects.
NOW THEREFORE, in consideration of the mutual covenants and
agreements hereinafter set forth, the Parties hereby agree as
follows:
1. Article III - Definitions. Article III of the Agreement is
hereby amended as follows:
(a) By revising the definition of "Contract Capacity" in
Article 3.6 to read in its entirety as follows:
3.6 "Contract Capacity" means the maximum summer Peak
Period producing capability the Generating Facility shall
demonstrate according to GPU/PJM guidelines, as in effect
from time to time, in MWH/Hr. which, in any event, shall not
be less than 52 MWH/Hr.
(b) By adding the following defined term therein:
3.16(a) "Major Facility Overhaul" means an outage of
the Cogeneration Facility for a complete replacement or
reconditioning of the Cogeneration Facility's electrical
prime mover, one or more of its turbine-generators or its
related boiler(s) due to ordinary wear and tear. Each such
outage may occur not more often than once every five (5)
years for a period of up to ninety (90) days each.
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(c) By revising the definition of "On-Peak Period" in
Article 3.19 to read in its entirety as follows:
3.19 "On-Peak Period" means all hours from 8:00 A.M.
to 8:00 P.M. prevailing time Monday through Friday, other
than on New Year's Day, Memorial Day, Independence Day,
Labor Day, Thanksgiving and Christmas.
(d) By adding definitions of the terms "Off-Peak Season"
and "On-Peak Season" as follows:
3.18(a) "Off-Peak Season" means the months of March,
April, May, October and November.
3.19(a) "On-Peak Season" means the months of December
through February and June through September.
2. Article 4.1 - Duration of Agreement. Paragraph B of Article
4.1 of the Agreement is hereby amended in its entirety and
new Paragraphs (C) through (H) are hereby added thereto to
read in full as follows:
(B) Seller has furnished JCP&L with a revised detailed
engineering, permitting and construction schedule identifying all
critical path items for project development and providing for
Initial Commercial Operation of the Facility by April 1, 1990.
Seller shall promptly advise JCP&L of any material revisions,
modifications or changes to such schedules.
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(C) Seller shall furnish JCP&L with quarterly status
reports describing the progress of the engineering,
permitting and construction of the Facility. Such reports
shall include, in reasonably sufficient detail, explanations
of any delays in meeting scheduled dates for commencement or
completion of any listed item.
(D) Seller shall immediately notify JCP&L if Seller
has not (i) obtained all critical path Federal, State and
local environmental construction permits and authorizations
to construct and operate the Facility and (ii) issued a
purchase order, or entered into a legally binding
commitment, for the Facility's principal energy conversion
device on or prior to the dates specified in the schedules
as initially submitted to JCP&L or as such schedules may
subsequently be revised.
(E) If the Initial Delivery Date has not occurred on
or prior to April 1, 1990, JCP&L may terminate this
Agreement upon written notice to Seller unless prior to such
date, (1) Seller demonstrates to JCP&L's reasonable
satisfaction that Seller has (a) commenced and there is
ongoing a program of continuous construction of the Facility
pursuant to which Seller has incurred or legally obligated
itself to pay for direct construction expenses of not less
than fifty (50%) percent of the projected direct
construction costs of the Facility (which Seller shall
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certify to JCP&L on the basis of appropriate documentation)
and (b) furnished JCP&L with a revised construction schedule
for the Facility under which the Facility will be in
Commercial Operation not later than April 1, 1991 and
(2) Seller pays to JCP&L the full amount of liquidated
damages set forth in Article XXII hereof, subject to refund
as provided in paragraph (G) below. In such event, the
Initial Delivery Date shall be extended to April 1, 1991, or
such earlier date as Seller shall specify in such revised
construction schedule.
(F) If the Initial Delivery Date has not occurred on
or prior to April 1, 1991, JCP&L may terminate this
Agreement upon written notice to Seller unless prior to such
date (a) Seller demonstrates to JCP&L's reasonable
satisfaction that a continuous program of construction of
the Facility is ongoing pursuant to which Seller has
incurred or legally obligated itself to pay for direct
construction expenses of not less than seventy-five (75%)
percent of the projected direct construction costs of the
Facility (which Seller shall certify to JCP&L on the basis
of appropriate documentation) and (b) Seller has furnished
JCP&L with a revised construction schedule for the Facility
under which the Facility will be in Commercial Operation not
later than April 1, 1992. In such event, the Initial
Delivery Date shall be extended to April 1, 1992, or such
earlier date as Seller shall specify in such revised
construction schedule.
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(G) In the event this Agreement is not otherwise
terminated pursuant to the provisions of this Article IV and
Seller pays to JCP&L the liquidated damages amount as
provided in Paragraph (E) above, then within thirty (30)
days of the end of the billing period following the Initial
Delivery Date, JCP&L shall credit Seller for amounts due to
JCP&L hereunder or otherwise reimburse Seller for the full
amount of such liquidated damage payment but without
interest thereon.
(H) If the Initial Delivery Date has not occurred for
any reason, including but not limited to Force Majeure, on
or prior to April 1, 1992, this Agreement may be terminated
by JCP&L upon written notice to Seller.
3. Article V - Operation and Maintenance.
Article V of the Agreement is hereby amended in the
following respects:
(a) Paragraph A of Article 5.5 is amended to read in
its entirety as follows:
A. Each Party shall keep the other Party's Operating
Representative informed as to the operating schedules of their
respective facilities affecting each other's obligations
hereunder, including any reduction in availability of Contract
Capacity. In addition, Seller shall furnish JCP&L with an annual
forecast not later than January 1 of each year following the
Initial Delivery Date setting forth the expected dates
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and anticipated duration of each scheduled outage for
the succeeding twelve (12) months. Seller shall notify
JCP&L not less than thirty (30) days prior to the
commencement of any scheduled outage, and of the
anticipated duration thereof, and as soon as possible
with respect to any unscheduled outage.
(b) Article 5.7 is hereby amended to read in its
entirety as follows:
5.7 Seller shall use its best efforts to schedule and
conduct routine maintenance outages of the
Facility only during the Off-Peak Season except
that Seller may conduct such scheduled outages of
the Facility up to a total of thirty (30) hours
during On-Peak Periods in the On-Peak Season in
any year, exclusive, however, of a Major Facility
Overhaul and any inspections required by law.
(c) Article 5.8 is amended by adding the following at
the end thereof:
Seller shall furnish to JCP&L on each January 1
following the Initial Delivery Date reasonably
satisfactory evidence that Seller has performed or
caused to be performed all manufacturer-recommended
maintenance and testing with respect to the Facility
and any protective apparatus and interconnection
equipment, including circuit breakers, relays and
auxiliary equipment. Seller shall provide JCP&L with
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at least thirty (30) days prior written notice of its
intent to test such equipment and JCP&L personnel may,
if JCP&L desires, observe such testing.
(d) Article 5.10 of is amended to read in its entirety
as follows:
5.10 (a) Seller shall generate and sell
electric energy to JCP&L throughout the term of
this Agreement and any extensions or renewals
hereof at an annual level for On-Peak Periods
which, commencing on January 1 of the fourth full
year of operation of the Facility following the
Initial Delivery Date and for each year thereafter
("Production Year"), shall be not less than 85% of
the average annual generation output achieved for
On-Peak Periods during the three (3) immediately
preceding years of operation of the Facility
("Average Generation").
(b) If the actual annual amount of electric
energy delivered from the Facility to JCP&L during
On-Peak Periods for any Production Year ("Actual
Generation") is less than 85% of the Average
Generation, then Seller shall pay JCP&L a
performance deficiency payment equal to the number
of kwh by which (x) 85% of the Average Generation
exceeds (y) the Actual Generation, multiplied by
the then variable pricing component as paid during
On-Peak Periods in cents per kwh.
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(c) For purposes of calculating the Actual
Generation of the Facility during a Production
Year, there shall be added to the actual amount of
electricity delivered from the Facility to JCP&L
during On-Peak Periods 85% of any kwh which the
Facility does not deliver (based upon the Contract
Capacity of the Facility) during On-Peak Periods
during such Production Year due to (i) Force
Majeure as provided in Article XI hereof, (ii) a
Major Facility Overhaul and (iii) a disconnection
of the Facility or an interruption, curtailment or
reduction of purchases of electricity by JCP&L
pursuant to Articles 5.3 or 7.6 hereof, other than
pursuant to Article 7.6(e) hereof.
(d) Seller shall make any performance
deficiency payment due to JCP&L in six (6) equal
monthly payments by applying said monthly payments
against amounts due from JCP&L for electric energy
delivered during the first six (6) months of the
year following the year for which the performance
deficiency payment statement applies. If Seller
does not deliver sufficient electric energy to
JCP&L in any month to allow the full set-off of
the monthly payment as provided herein, Seller
shall pay to JCP&L within ten (10) days after the
end of such month, any amount which cannot be set-
off. Any and all amounts due and owing to JCP&L
under this Article V shall be immediately due
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and payable by Seller in the event of a
termination of this Agreement.
(e) JCP&L shall submit to Seller a
performance deficiency payment statement setting
forth the amount of any performance deficiency
payment to be made by Seller to JCP&L pursuant to
this Article V within thirty (30) days after the
close of each year for which a performance
deficiency payment has been incurred.
(f) If JCP&L does not receive written notice
from Seller of any objection to the performance
deficiency payment statement within fifteen (15)
days from the date of Seller's receipt thereof,
said statement shall be deemed conclusive and
binding on the Parties absent manifest error.
(g) Seller shall demonstrate the ability of
the Facility to provide JCP&L with the specified
Contract Capacity within thirty (30) days after
the Initial Delivery Date. Thereafter, twice
annually at JCP&L's request, Seller shall once,
during On-Peak summer months (June through
September) and once during On-Peak winter months
(December through February), demonstrate the
ability of the Facility to provide Contract
Capacity for such period of time as is required by
PJM from time to time for all PJM suppliers.
Demonstration of Contract Capacity shall
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be at Seller's expense and conducted at a time and
pursuant to procedures as may be required by
applicable PJM rules, regulations and guidelines
and, to the extent not inconsistent therewith, as
mutually agreed upon by the Parties. If Seller
fails to demonstrate the ability of the Facility
to provide Contract Capacity, the Contract
Capacity component (fixed price component) of the
price to be paid for energy, as set forth in
Appendix A hereto, shall be reduced to the
following amount for so long as Seller is unable
to demonstrate the ability of the Facility to
provide Contract Capacity:
Demonstrated Capacity x Capacity Component of Price
Contract Capacity (fixed price component)
4. Articles 5.11, 5.15 and 5.16. Articles 5.11, 5.15, and 5.16
of the Agreement are hereby deleted in their entirety and
shall have no further force or effect.
5. Article VI - Measurement and Metering.
Paragraph A of Article 6.5 is hereby amended by
revising the first sentence thereof to read in full as
follows:
A. The accuracy of the Wheeling Utility's measuring
equipment shall be tested and verified by Seller or the
Wheeling Utility at reasonable intervals, but not less
often than once annually, and, if requested, in JCP&L's
presence.
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6. Article VII - Terms of Sale.
(a) Article 7.1 is hereby amended by including the
language at the end thereof before the period: "up to a
maximum of 52 MWH/Hr.; provided, however, that if offered by
Seller, JCP&L may agree to purchase additional energy from
the Facility up to a maximum of 56 MWH/Hr. except that
notwithstanding anything contained in this Agreement or
Appendix A to the contrary, the price paid for such
additional energy shall be 90% of the On-peak or Off-peak,
as applicable, PJM billing rate as then in effect".
(b) Article 7.3(c) is hereby amended to read in full
as follows:
(c) On or before Thursday of each week, Seller
shall also furnish to JCP&L estimates of the Facility's
energy production for that week. Actual performance
information as required from time to time for PJM
reporting purposes will be supplied by Seller to JCP&L
upon request.
(c) Article 7.6(d) is hereby amended by changing the
reference "400 kwh" in the penultimate line thereof to "400
hours".
7. Article IX - Billings and Records.
Article 9.1 is hereby amended by replacing the phrase
"the end of each monthly billing period" in the third line
thereof with the phrase "receipt by JCP&L of an official
billing statement from the Wheeling Utility showing the
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amount of Electricity delivered from the Facility to JCP&L
during a monthly billing period in sufficient detail for
JCP&L to calculate amounts due to Seller hereunder."
8. Article XII - Insurance, Liability and Indemnification.
Article 12.1 is hereby amended to read in full as
follows:
12.1 Insurance.
(A) Seller agrees to keep the Facility continuously
insured with reputable insurance companies against loss or
damage in the amounts and for the risks that property of
similar character is usually so insured by entities owning
and operating like properties.
(B) Seller shall maintain in effect insurance coverage
for the Facility with initial minimum limits as follows:
Insurance Limits
1.a. Worker's Compensation As required by
Insurance statute
b. Employer's Liability $500,000
Insurance
2.Comprehensive General Liability (Public Liability)
Insurance including:
a. Bodily Injury $1,000,000 per
occurrence
and
Property Damage $1,000,000 combined
single limit per
occurrence
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b. Bodily Injury and Property $1,000,000 combined
Damage single limit per
occurrence
c. Personal Injury $500,000 per
occurrence
3.Automobile Liability Insurance (owned, hired & non-
owned):
a. Bodily Injury $500,000 per Accident
b. Property Damage $500,000 per Accident
4. Seller shall also procure and maintain in effect
business interruption and property hazard insurance in
sufficient amounts to cover and otherwise insure against
reasonable business risks associated with damage to or other
interruption or loss of use of the Facility and appurtenant
equipment.
5. JCP&L may, upon ninety (90) days prior written notice,
require Seller and Seller shall, from time to time, increase
the foregoing initial limits to amounts which shall be
reasonable, based upon commercial availability of such
increased limits at commercially reasonable terms and the
location, size and type of the Facility, to meet changed
circumstances and then current industry practice.
(C) Seller's liability insurance (other than its
worker's compensation insurance) shall include provisions or
endorsements providing that such policies shall not be
cancelled or their limits of liability reduced without
thirty (30) days prior written notice to JCP&L.
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(D) A copy of each such insurance policy, certified as
a true copy by an authorized representative of the issuing
insurance company or in lieu thereof, a certificate in form
satisfactory to JCP&L certifying to the issuance of such
insurance, shall be furnished to JCP&L on or before the
Initial Delivery Date and fifteen (15) days prior to the
expiration date of each such policy.
9. Article 13.2 - Remedies for Breach. Article 13.2 is hereby
amended to read in its entirety as follows:
13.2(A) Remedies for Breach.
(i) In the event of a breach of this Agreement, as
defined in Article 13.1 hereof, the non-breaching Party may
terminate this Agreement by giving written notice of such
breach and termination to the Party in breach, whereupon the
non-breaching Party shall be excused and relieved of all
further liability and obligations hereunder.
(ii) Notwithstanding the foregoing, in the event of a
breach of this Agreement the non-breaching Party shall be
entitled (x) to commence an action in the nature of specific
performance to require the breaching Party to cure such
breach and specifically perform its duties and obligations
under this Agreement in accordance with the terms and
conditions hereof and (y) to exercise such other rights and
remedies as it may have at equity or at law.
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13.2(B) JCP&L's Right to Operate.
If at any time during the term of this Agreement Seller
breaches this Agreement, or Seller fails to operate and
maintain the Facility in accordance with the terms and
conditions hereof for a period of sixty (60) days after
written notice from JCP&L and during such period Seller does
not take or has not taken reasonable steps to cure such
breach or correct such failure, JCP&L may, at its sole
election and without any obligation to so do, assume
management control of, and otherwise operate, the Facility
and all the appurtenant equipment necessary to deliver
electricity to JCP&L's system. Such right to assume
operation of the Facility shall be limited by and subject to
the following:
(1) JCP&L may exercise its option to assume management
control and operation of the Facility and the appurtenant
equipment after having given ten (10) days written notice of
its intentions to Seller.
(2) JCP&L shall promptly return operation and
management control of the Facility to Seller at such time as
Seller demonstrates to JCP&L's satisfaction that Seller is
able to resume performance of its obligations, duties, and
responsibilities under this Agreement.
(3) Seller shall at all times retain legal title to
and ownership of the Facility.
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(4) JCP&L's assumption of management control and/or
operation of the Facility and appurtenant equipment shall
not be construed as creating any duty or responsibility on
JCP&L's part for the continued or economic operation of the
Facility for the benefit of Seller or any third party.
(5) Seller shall indemnify, defend, and hold JCP&L
harmless from and against all damages, claims, actions, and
lawsuits (including but not limited to legal fees and
expenses) which JCP&L may suffer or incur as a result of
assuming management control and operation of the Facility.
(6) Seller shall reimburse JCP&L for any and all costs
and expenses reasonably incurred by JCP&L in assuming
operation of and operating the Facility, or at its sole
discretion, JCP&L may set off such costs and expenses
against any amounts due Seller under this Agreement.
(7) Seller hereby waives any and all claims, damages,
actions and lawsuits which it may have against JCP&L (other
than claims for damages arising out of JCP&L's gross
negligence) as a result of any personal injury, damage to or
impairment of the environment, or damage resulting to any
property (including but not limited to the Facility) during
such time that JCP&L has undertaken management control and
operation of the Facility pursuant hereto; provided,
however, that JCP&L shall at all times take such reasonable
steps as may be necessary to operate the Facility in
accordance with all applicable laws, governmental
regulations and regulatory requirements.
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(8) Notwithstanding the foregoing, should JCP&L assume
management control and operation of the Facility hereunder,
JCP&L may at any time return operation and control of the
Facility to Seller without any further liability or
obligation on the part of JCP&L.
10. Article 15.2 - Service of Notice.
Article 15.2(l) is hereby amended to provide that
notices to Seller shall be addressed as follows:
O'Brien Energy Systems, Inc.
225 South Eighth Street
Philadelphia, Pennsylvania 19106
Attention: Jeffrey Barnes,
Executive Vice President
11. A new Article 22 is hereby added to the Agreement to provide
as follows:
ARTICLE 22
LIQUIDATED DAMAGES
22.1 If Seller shall abandon or fail to complete the
Facility before the Initial Delivery Date and this Agreement
is therefore terminated, it is acknowledged and agreed that
JCP&L will suffer damages which, as the result of JCP&L's
dependence upon the delivery of the Facility's energy and
capacity hereunder, JCP&L would be unable to mitigate fully.
JCP&L and Seller agree that the amount of actual damages
suffered by JCP&L under the foregoing circumstances would be
difficult or impossible to measure. Therefore, JCP&L and
Seller agree that
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if the Facility shall fail to commence Commercial Operation
on or before the Initial Delivery Date, as the same may be
extended, set forth in Article 4 of this Agreement, Seller
shall pay to JCP&L a one-time liquidated damage amount equal
to ten dollars ($10.00) per kw of the anticipated Contract
Capacity of the Facility as set forth in Preface A (Project
Summary) to this Agreement. Seller will secure payment of
this amount by providing to JCP&L not later than thirty (30)
days following the issuance of an order by the New Jersey
Board of Public Utilities approving the Second Amendment to
the Agreement, a non-cancellable surety bond or irrevocable
bank letter of credit in form and substance reasonably
acceptable to JCP&L upon which JCP&L can draw if the
Facility does not achieve Commercial Operation by the
Initial Delivery Date. Said surety bond or letter of credit
will be renewed by Seller not later than 10 days prior to
its stated expiration date. At Seller's option, the surety
bond or letter of credit may be replaced with other security
acceptable to JCP&L. Notwithstanding anything contained in
this Agreement to the contrary, if Seller should fail to
renew the surety bond, letter of credit or other security
accepted by JCP&L on or before the tenth day prior to its
stated expiration date, JCP&L shall be entitled, without
further notice to Seller, to draw on such surety bond,
letter of credit or other security. Upon receipt of payment
thereunder, JCP&L shall hold the funds pending (i) a renewal
of the surety bond, letter of credit or
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other security, in which event JCP&L shall refund such funds
to Seller or (ii) a termination of this Agreement as herein
provided in which case JCP&L shall retain the funds in
accordance with the terms hereof.
12. A new Article 23 is hereby added to the Agreement
to provide as follows:
ARTICLE 23
COVENANTS
23.1 Seller hereby covenants and agrees that prior to
the Initial Delivery Date, Seller shall at its own cost and
expense obtain all material permits, licenses and other
authorizations from governmental authorities as may be
required to construct, operate and maintain the Facility and
to perform its obligations hereunder, and during the term
hereof, Seller shall furnish to JCP&L copies of each such
permit, license and authorization promptly following receipt
thereof. Seller shall maintain in full force and effect all
such governmental permits, licenses and authorizations as
may be necessary for the construction, operation or
maintenance of the Facility.
13. Appendix A - Schedule of Electricity Purchase Prices.
Paragraph A.1 of Appendix A is hereby amended to
read in its entirety as follows:
Price: Buyer shall pay the following amounts to
Seller for electricity delivered to Buyer:
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A. For electricity delivered in an On-Peak
Period prior to January 1, 2000, 120% of the
applicable rate times the electricity delivered in
the On-Peak Period. For electricity delivered in
the On-Peak Period after January 1, 2000, 110% of
the applicable rate times the electricity
delivered in the On-Peak Period.
B. For electricity delivered in an Off-Peak
Period prior to January 1, 2000, 88.9% of the
applicable rate times the electricity delivered in
the Off-Peak Period. For electricity delivered in
an Off-Peak Period after January 1, 2000, 92% of
the applicable rate times the electricity
delivered in the Off-Peak Period.
14. Paragraph A.2B of Appendix A is hereby amended and a
new Paragraph A.2C is hereby added to read in their
entirety as follows:
B. The Adjusted Base Rate (as determined
pursuant to Article A.3) for deliveries on or
after April 1, 1986, excluding deliveries prior to
the demonstration of Contract Capacity as provided
in this Agreement.
C. The applicable On-Peak or Off-Peak PJM
billing rate to GPU minus 10% for energy delivered
prior to the demonstration of Contract Capacity as
provided in this Agreement.
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15. Effectiveness; Regulatory Approval. This Second
Amendment shall become effective and binding upon the
Parties hereto upon execution hereof and issuance of a
final order by the New Jersey Board of Public Utilities
approving this Second Amendment as so executed, and
without terms and conditions unreasonably to either
Party.
16. Captions; Miscellaneous.
All indexes, titles, subject headings, section
titles and similar items are provided for the purpose
of reference and convenience only and are not intended
to be inclusive, definitive or to affect the meaning of
the contents or scope of this Second Amendment. Unless
otherwise defined in this Second Amendment, capitalized
terms shall have the meaning ascribed to them in the
Agreement.
17. Choice of Law.
This Second Amendment shall be governed by and
construed in accordance with the laws of the State of
New Jersey applicable to contracts made and to be
performed in that State.
18. Entire Agreement; Severability.
The Agreement, as further amended by this Second
Amendment, supersedes any and all oral or written
agreements and understandings heretofore made relating
to the subject matter hereof, and constitutes the
entire agreement and understanding of the Parties
relating
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hereto. Should any provision of this Amendment be held
invalid or unenforceable, such provision shall be
invalid or unenforceable only to the extent of such
invalidity or unenforceability without invalidating or
rendering unenforceable any other provision thereof.
Except as amended by this Second Amendment, the
Agreement shall remain in full force and effect.
19. Counterparts.
This Second Amendment may be executed in any number of
counterparts, and all such counterparts executed and
delivered, each as an original, shall constitute but one and
the same instrument.
IN WITNESS WHEREOF, the parties by their authorized
representatives have executed this Second Amendment as of
the day and year first set forth above.
ATTEST: JERSEY CENTRAL POWER & LIGHT
COMPANY
/s/ C.A. Marks By: /s/ E.J. McCarthy
Asst. Secretary
ATTEST: O'BRIEN ENERGY SYSTEMS, INC.
/s/ C.B. Balickie By: /s/ Sanders Newman
Secretary Sr. V.P. - Sec. & Gen. Counsel
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