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EXHIBIT 10.76
ASSIGNMENT AGREEMENT BY COGEN TECHNOLOGIES NJ, INC.
TO COGEN TECHNOLOGIES NJ VENTURE
ASSIGNMENT, dated as of September 8, 1986, among COGEN TECHNOLOGIES NJ,
INC., a Delaware Corporation, ("Cogen") and COGEN TECHNOLOGIES NJ VENTURE, a New
Jersey joint venture (the "Venture") (collectively, the "Parties").
WITNESSETH
WHEREAS, Cogen has entered into a joint venture under the laws of the
State of New Jersey, the limited purpose of which is to: (i) acquire, construct,
own, maintain, operate, repair, improve, rebuild, alter, replace, lease, sell,
mortgage, hypothecate or otherwise use and deal with a gas-fired cogeneration
plant to be located at Bayonne, New Jersey (the "Cogeneration Facility"); (ii)
produce and sell electricity and steam from the Cogeneration Facility; and (iii)
engage in any and all activities related or incident thereto, including, without
limitation, the acquisition, ownership, improvement, operation, sale, lease,
mortgage, hypothecation or other use of or dealing with all types and kinds of
property, all as evidenced by the Amended and Restated Joint Venture Agreement
of Cogen Technologies NJ Venture, dated as of September 5, 1986 ("Venture
Agreement"); and
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WHEREAS, it is a condition of the Venture Agreement that Cogen assign
to the Venture all of Cogen's rights, title and interests in and to the
Agreement for Purchase of Electric Power Between Cogen Technologies NJ, Inc. and
Jersey Central Power & Light Company, dated October 29, 1985, as amended by
amendment dated September 5, 1986 (the "Power Purchase Agreement");
NOW, THEREFORE, in order to satisfy the conditions of the Venture
Agreement, the Parties hereto agree as follows:
ARTICLE 1
ASSIGNMENT OF RIGHTS, TITLE AND INTEREST
IN THE POWER PURCHASE AGREEMENT
1.1 In satisfaction of the conditions of the Venture Agreement, Cogen
hereby assigns, transfers, conveys, and sets over to the Venture all of Cogen's
rights, title 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 the 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 make determinations, (ii) to exercise any election (including,
but not limited to, election of
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remedies) or option or to give or receive full power and authority to
demand, receive, enforce, collect or give receipt for any of the
foregoing, (iii) to amend, modify or supplement the Power Purchase
Agreement, (iv) to enforce or execute any checks, or other instruments
or orders, (v) to file any claims and (vi) to take any action which (in
the opinion of the Venture) may be necessary or advisable in connection
with any of the foregoing.
1.2 Cogen hereby represents and warrants with respect to the Power
Purchase Agreement that as of the date of this Assignment:
(a) it is in full force and effect and there is no breach or
default thereunder, and
(b) it has not been transferred or assigned in whole or in
part, save for the assignment herein contained, and no lien arising by,
through, or under Cogen exists with respect to any of them or any
obligation payable or performable thereunder.
1.3 Cogen hereby irrevocably appoints the Venture as its
attorney-in-fact to do in its name all acts which it could do in relation to the
Power Purchase Agreement and in particular, but without limiting the generality
of the foregoing, to ask, require, demand, receive, compound and forgive any and
all moneys and claims for moneys due and to become due under or arising out of
the Power Purchase Agreement, to endorse any checks or other instruments or take
any action to institute any proceedings which
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the agent may deem to be necessary or advisable in the circumstances, which
appointment is coupled with an interest.
ARTICLE 2
ASSUMPTION OF OBLIGATIONS UNDER
THE POWER PURCHASE AGREEMENT
The Venture hereby assumes any and all of Cogen's obligations and
liabilities under the Power Purchase Agreement and undertakes to punctually
perform any and all of Cogen's obligations under the Power Purchase Agreement.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE PARTIES
3.1 Representations and Warranties of Cogen. Cogen hereby represents
and warrants to the Venture as follows:
(a) Cogen is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware and has
all requisite power and authority to execute and deliver this
Assignment;
(b) the execution, delivery and performance of this Assignment
by Cogen have been validly authorized and approved by all requisite
corporate action. This Assignment constitutes the valid binding
agreement of Cogen enforceable against Cogen in accordance with its
terms; and
(c) the execution, delivery and performance by Cogen of this
Assignment will not conflict with or cause a breach of or default under
any other agreement to which Cogen is a party or by which it or its
properties may be bound.
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3.2 Representations and Warranties of the Venture. The Venture hereby
represents and warrants to Cogen as follows:
(a) the Venture is a joint venture duly formed and validly
existing under the laws of the State of New Jersey under a joint
venture agreement dated September __, 1986, with respect to which a
trade name certificate has been filed in the Office of the Clerk of
Xxxxxx County;
(b) the execution, delivery and performance of this Assignment
by the Venture has been duly and validly authorized and approved by all
requisite joint venture action. This Assignment constitutes the valid
and binding agreement of the Venture enforceable against the Venture in
accordance with its terms; and
(c) the execution and delivery of this Assignment by the
Venture and the performance by the Venture of its obligations hereunder
and, as assignee, under the Power Purchase Agreement, will not conflict
with or cause a breach of or default under any other agreement to which
the Venture is a party or by which it or its properties may be bound.
ARTICLE 4
INDEMNIFICATION
4.1 Indemnification of the Venture. Cogen shall indemnify and hold the
Venture 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,
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incurred or sustained by or against the Venture 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.
4.2 Indemnification of Cogen. The Venture 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 Venture, 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 5
MISCELLANEOUS
5.1 Further Assurances. Cogen hereby undertakes, at its own expense, to
accomplish any appropriate filings relative to the assignments herein contained
and execute, sign, deliver, do and (if required) make any appropriate filings in
connection with such further assurance, instrument, document, act or thing as in
the opinion of the Venture may be necessary or desirable for the purpose of
more effectually assigning the assigned rights and/or
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perfecting the assignments herein contained and/or enabling the Venture to enjoy
the full benefit of the assignments and the rights and the powers herein granted
to the Venture.
5.2 Notices. All notices, requests, demands or other communications to
or upon the respective Parties hereto shall be deemed to have been duly given or
made five (5) calendar days after being deposited in the mails, registered or
certified mail, postage prepaid, or in the case of telex, telegraphic or cable
notice, twenty-four (24) hours after being sent, addressed as follows:
Cogen Technologies NJ, Inc.
00000 Xxxxxxx Xxxxx Xxxxx
Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxx X. XxXxxx
President
Cogen Technologies NJ Venture
00000 Xxxxxxx Xxxxx Xxxxx
Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxx X. XxXxxx
or to such other addresses as any such Parties may hereafter specify to others
in writing.
5.3 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
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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.
5.4 Survival of Agreements. All agreements, representations and
warranties made herein shall survive the execution and delivery of this
Assignment.
5.5 Headings. The section and subsection headings used in this
Assignment are for convenience only and shall not affect the construction of
this Assignment.
5.6 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.
5.7 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.
5.8 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.
5.9 Governing Law. This Assignment shall be governed by, and construed
and interpreted in accordance with, the laws of the State of New Jersey.
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5.10 Illegality. In the event that it should transpire that by reason
of any law or regulation in force or to become in force, or by reason of a
ruling of any court whatsoever, or by any other reason whatsoever, the
assignments herein contained are either wholly or partly defective, Cogen hereby
undertakes to furnish the Venture with alternative assignments and/or to do all
such other acts as, in the sole opinion of the Venture, shall be required in
order to ensure and give effect to the full intent and spirit of this
Assignment.
5.11 Waivers, Amendment, Supplements and Other Modifications. The
provisions of this Assignment may be waived, amended, supplemented or otherwise
modified from time to time, in whole or in part, only by a writing signed by
Cogen and the Venture.
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IN WITNESS WHEREOF, this Assignment has been executed and delivered as
of the date and year first above written.
COGEN TECHNOLOGIES NJ, INC.
By: /s/ XXXXXX X. XXXXXX
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Xxxxxx X. XxXxxx
President
COGEN TECHNOLOGIES NJ VENTURE
By: Cogen Technologies NJ, Inc.,
Venturer
By: /s/ XXXXXX X. XXXXXX
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Xxxxxx X. XxXxxx
President
By: Enron Cogeneration Five Company,
(formerly known as Northern
Cogeneration Five Company)
Venturer
By: /s/ XXXXXXX XXXXXXX
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Xxxxxxx Xxxxxxx
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Vice President
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By: CEA Bayonne, Inc., Venturer
By: /s/ [ILLEGIBLE]
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By: PSVO Bayonne, Inc.
Venturer
By: /s/ [ILLEGIBLE]
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[ILLEGIBLE]
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Vice President
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BY: Transco Cogeneration Company,
Venturer
By: /s/ XXXXXX X. XXXXXXX
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Xxxxxx X. Xxxxxxx
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President
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