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EXHIBIT 10.8(b)
ASSIGNMENT OF POWER PURCHASE AGREEMENT
THIS ASSIGNMENT dated as of July 21, 1989, between COGEN TECHNOLOGIES,
INC., a Texas corporation ("Cogen"), and COGEN TECHNOLOGIES LINDEN, LTD., a
Texas limited partnership (the "Partnership") (together, the "Parties" and
each, a "Party"),
W I T N E S S E T H:
WHEREAS, Cogen has entered into that certain Agreement of Limited
Partnership of Cogen Technologies Linden, Ltd., dated as of June 28, 1989 (the
"Partnership Agreement"), under which Partnership Agreement the Texas limited
partnership known as Cogen Technologies Linden, Ltd. was created; and
WHEREAS, under the Partnership Agreement, Cogen agreed to assign to
the Partnership all of Cogen's rights, titles and interests in and to the Power
Purchase Agreement dated April 14, 1989 by and between Cogen and Consolidated
Edison Company of New York, Inc. (the "Power Purchase Agreement"); and
WHEREAS, the Power Purchase Agreement provides by its terms that
Cogen, without the necessity of obtaining the consent of Consolidated Edison
Company of New York, Inc., may assign the Power Purchase Agreement to a
partnership in which Cogen is a partner; and
WHEREAS, Cogen is the sole general partner of the Partnership and,
thus, Cogen may so assign the Power Purchase
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Agreement in accordance with the terms thereof to the Partnership;
NOW, THEREFORE, in furtherance of the foregoing and for Ten Dollars
($10.00) and other good and valuable consideration, the Parties agree as
follows:
ARTICLE 1
ASSIGNMENT OF RIGHTS, TITLES AND INTERESTS
IN THE POWER PURCHASE AGREEMENT
Cogen hereby assigns, transfers, conveys and sets over to the
Partnership all of Cogen's rights, titles and interests in, to and under the
Power Purchase Agreement and all proceeds thereof, including without
limitation:
(a) all payments due and to become due under the Power
Purchase Agreement, whether as contractual obligations, damages
payable to Cogen for any breach thereunder, or otherwise;
(b) all of Cogen's claims, rights, powers or privileges and
remedies under the Power Purchase Agreement; and
(c) all of Cogen's rights under the Power Purchase Agreement
(i) to enforce the Power Purchase Agreement, (ii) to make
determinations, (iii) to exercise any elections (including, but not
limited to, election of remedies) or options, (iv) to amend, modify or
supplement the Power Purchase Agreement, (v) to enforce or execute any
checks, or other
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instruments or orders, (vi) to file any claims and (vii) to take any
action which (in the opinion of the Partnership) may be necessary or
advisable in connection with any of the foregoing.
ARTICLE 2
ASSUMPTION OF OBLIGATIONS UNDER
THE POWER PURCHASE AGREEMENT AND OF
POWER PURCHASE AGREEMENT INDEBTEDNESS
The Partnership hereby assumes (i) any and all of Cogen's obligations
and liabilities under the Power Purchase Agreement and (ii) any and all of
Cogen's obligations and liabilities to pay the "Power Purchase Agreement
Indebtedness (as defined in the Partnership Agreement), and undertakes to
punctually perform any and all of Cogen's obligations under the Power Purchase
Agreement and to punctually pay on or before the due date thereof, all of such
Power Purchase Agreement Indebtedness.
ARTICLE 3
INDEMNIFICATION
3.1 Indemnification of the Partnership. Cogen shall indemnify and hold
the Partnership and its successors and assigns harmless from and against all
damages, losses or expenses suffered or paid as a result of any claims,
demands, suits, causes of action, proceedings, judgments and liabilities,
including reasonable counsel fees incurred in litigation or otherwise,
assessed, incurred or sustained by or
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against the Partnership and its successors and assigns with respect to or
arising out of an act or omission of Cogen, its employees, subcontractors,
agents or representatives, in connection with the Power Purchase Agreement,
which act or omission occurred prior to the date of this Assignment.
3.2 Indemnification of Cogen. The Partnership shall indemnify and hold
Cogen and its successors and assigns harmless from and against all damages,
losses or expenses suffered or paid as a result of any claims, demands, suits,
causes of action, proceedings, judgments and liabilities, including reasonable
counsel fees incurred in litigation or otherwise, assessed, incurred or
sustained by or against Cogen and its successors and assigns with respect to or
arising out of an act or omission of the Partnership, its employees,
subcontractors, agents or representatives, in connection with the Power
Purchase Agreement, which act or omission occurred subsequent to the date of
this Assignment.
ARTICLE 4
MISCELLANEOUS
4.1 Approval Required. The Partnership acknowledges that it has been
advised by Cogen that the Power Purchase Agreement must be approved by the
State of New York Public Service Commission, which approval has been requested
but has not yet been obtained.
4.2 Notices. All notices, requests, demands or other communications to
or upon the respective Parties hereto shall
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mail, postage prepaid, or in the case of telex, telegraphic or cable notice,
twenty-four (24) hours after being sent, or in the case of personal delivery,
upon receipt, addressed as follows:
Cogen Technologies, Inc.
0000 Xxxxx Xxxxxx Building
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attn: Xxxxxx X. XxXxxx
Cogen Technologies Linden, Ltd.
0000 Xxxxx Xxxxxx Building
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attn: Xxxxxx X. XxXxxx
or to such other addresses as a Party may hereafter specify to others in
writing.
4.3 No Waiver; Cumulative Remedies. No failure to exercise, and no
delay in exercising, any right, power or privilege hereunder, shall operate as
a waiver thereof; nor shall any single or partial exercise of any right, power
or privilege hereunder preclude or require any other or future exercise thereof
or the exercise of any other right, power or privilege. All rights, powers and
remedies granted to any Party hereto and all other agreements, instruments and
documents executed in connection with this Assignment shall be cumulative, may
be exercised singly or concurrently and shall not be exclusive of any rights or
remedies provided by law.
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4.4 Headings. The section and subsection headings used in this
Assignment are for convenience only and shall not affect the construction of
this Assignment.
4.5 Severability. In case any one or more of the provisions contained
in this Assignment shall be invalid, illegal or unenforceable in any respect
under any law, the validity, legality and enforceability of the remaining
provisions contained herein and therein shall not in any way be affected or
impaired thereby.
4.6 Execution of Counterparts. This Assignment may be executed in any
number of counterparts. All such counterparts shall be deemed to be originals
and shall together constitute but one and the same instrument.
4.7 Binding Effect. This Assignment shall be binding upon and inure to
the benefit of each of the Parties hereto and their respective successors and
assigns.
4.8 GOVERNING LAW. THIS ASSIGNMENT SHALL BE GOVERNED BY, AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK,
EXCLUSIVE OF ITS CONFLICTS OF LAWS PRINCIPLES.
IN WITNESS WHEREOF, this Assignment has been executed and delivered as
of the date and year first above written.
COGEN TECHNOLOGIES, INC.
By /s/ XXXXXX X. XXXXXX
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XXXXXX X. XxXXXX (print name)
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PRESIDENT (title)
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[Signatures continued]
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COGEN TECHNOLOGIES LINDEN, LTD.
By Cogen Technologies, Inc.,
General Partner
By /s/ XXXXXX X. XxXXXX
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Xxxxxx X. XxXxxx (print name)
President (title)
