EXHIBIT 10.3
SECOND AMENDMENT TO POWER PURCHASE AGREEMENT
THIS SECOND AMENDMENT TO POWER PURCHASE AGREEMENT (the "Second
Amendment"), made and entered into as of the 22nd day of December, 1993, by and
between Cogen Technologies Linden Venture, L.P. ("Seller"), and Consolidated
Edison Company of New York, Inc. ("Buyer"), constitutes an amendment to the
Power Purchase Agreement, dated April 14, 1989, between Buyer and Cogen
Technologies, Inc., as assigned to Seller by Cogen Technologies Linden, Ltd.,
assignee of Cogen Technologies, Inc., as amended by the First Amendment to Power
Purchase Agreement between Buyer and Seller, dated September 17, 1990 (the Power
Purchase Agreement and the First Amendment to Power Purchase Agreement referred
to herein together as the "Agreement").
W I T N E S S E T H :
WHEREAS, Buyer and Seller previously entered into the Agreement for
the purchase by Buyer of the capacityand energy to be produced by a gas-fired
cogeneration plant and appurtenant facilities to be constructed in Linden, New
Jersey (the "Plant");
WHEREAS, the "Date of Initial Commercial operation" of the Plant (as
such term is defined in Article 1.4 of the Agreement) occurred on May 1, 1992;
WHEREAS, since the Date of Initial Commercial Operation certain
matters not adequately addressed by the Agreement have arisen which Buyer and
Seller desire to address in the form of an amendment to the Agreement;
WHEREAS, Seller is willing to add greater flexibility to the schedule
pursuant to which the Plant may be dispatched by
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Buyer in exchange for Buyer's waiver of any rights Buyer may have under either
Federal or State law to refuse to accept "Electricity" (as defined in Article
1.8 of the Agreement) from Seller; and
WHEREAS, Buyer and Seller desire to amend the Agreement in order to
provide greater certainty with regard to their respective rights and obligations
thereunder.
NOW, THEREFORE, in consideration of the foregoing and the promises and
covenants hereinafter set forth, Buyer and Seller agree to amend the Agreement
as follows:
FIRST. The Table of Contents is amended by deleting "8.6 Annual
Reimbursement" therefrom, by inserting "11.5 Voltage Support" immediately under
"11.4 maintenance Coordination by Buyer", and by inserting "24.8 Service"
immediately under "24.7 Waiver".
SECOND. The following is inserted as Article 1.2(A):
" 1.2(A) The term "Buyer's Interconnection Facilities" means: (i) all real
property interests related to the Dedicated Facilities, and (ii) that portion of
the Dedicated Facilities from the Point of Interconnection to the physical
interconnection of the Direct Interconnection at Buyer's Goethals Substation
other than the real property interests related to the Dedicated Facilities."
THIRD. The following is inserted as Article 1.4(A):
" 1.4(A) The term "Dedicated Facilities" means the additional facilities on
Buyer's side of the Point of Interconnection (including at locations other than
Buyer's Goethals Substation) specifically acquired,
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constructed, and/or installed for the receipt of Electricity by Buyer,
including, without limitation, the towers, circuit breakers, transformers,
remotelylocated protection devices, and associated equipment, but not including
any Series Reactors."
FOURTH. Article 1.9 is amended by inserting immediately after "fuel
oil" the following:
", and steam generated by a source external to the Plant"
FIFTH. Article 1.13 is amended by inserting
immediately after "such persons" the following:
"; provided, Buyer shall have received written notice of such person.
Buyer hereby acknowledges that it has received notice that State
Street Bank and Trust Company of Connecticut, National Association (as
"Owner Trustee"), is the "Lender" for purposes of this Agreement,
unless a substitute is designated pursuant to the Recognition
Agreement dated September 20, 1991 among Buyer, Seller, State Street
Bank and Trust Company of Connecticut, National Association (as "Owner
Trustee"), and Union Bank of Switzerland, New York Branch (as
"Agent")"
SIXTH. Article 1.20 is amended by deleting the last three sentences
thereof and by inserting at the end of the first sentence thereof the following:
"The Plant does not include equipment that may be installed at the
Plant site after June 1, 1993 for the purpose of generating electric
power and selling such
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power to any party other than Buyer, provided such equipment is
electrically isolated from the Plant except for purposes of receiving
startup or emergency backup power. In addition, the Plant does not
include any facilities, structures, or equipment on Buyer's side of
the Point of Interconnection."
SEVENTH. Article 1.21 is amended by inserting immediately after
"Buyer's transmission system" the following:
"which point is at the legal boundary between the State of New Jersey
and the State of New York, as such boundary now exists or as it may be
redetermined by competent authority"
EIGHTH. The following is inserted as Article 1.24:
" 1.24 The term "Series Reactors" means reactors installed at Buyer's
Gowanus Substation designed to have the capability to reduce short
circuit duties on Buyer's transmission system imposed, in part, by the
Plant, which, but for the Agreement, Buyer would not have installed."
NINTH. Article 2.1 is amended by inserting immediately after
"applicable after such date" the following:
", provided, however, that Seller's option under Article 8.3(E), and
Buyer's obligations related thereto, shall survive the expiration of
this Agreement"
TENTH. Article 3.2(B) is deleted in its entirety and the following is
inserted in lieu thereof:
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" (B) Buyer's obligation to accept Electricity from Seller shall
be suspended pursuant to Article 10 of this Agreement (relating to
suspension).
(C) Buyer hereby waives any rights it may have now or hereafter
under either Federal or State law, pursuant to 18 C.F.R. (S)
292.304(f), its successor, or otherwise, whether established by the
PSC in Case 88-E-081, Case 92-E-0814, or otherwise, to refuse to
accept and pay for Electricity from Seller except as specifically
provided under this Agreement."
ELEVENTH. Article 3.3 is amended by inserting at the end thereof the
following:
"Title to Electricity sold to Buyer, and any risk of loss of such
Electricity, shall pass from Seller to Buyer at the Point of
Interconnection. Measurement of Electricity delivered under this
Agreement shall be pursuant to Article 7.1."
TWELFTH. Article 4.1(B) is amended by inserting
": (i)" immediately after "means" in the first line thereof, and
inserting immediately after "Plant in such month" in the last
line thereof the following:
"; and (ii) the Steam Component"
THIRTEENTH. Article 4.1(E) and Article 4.1(F) are redesignated as
Article 4.1(G) and Article 4.1(H) respectively. The following is added as
Article 4.1(E) and Article 4.1(F):
(E) The term "Incremental 0 & M Component" for an Annual
Period means an amount equal to one hundred and eighty thousand
dollars ($180,000) for
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the Annual Period commencing on May 1, 1993, which amount shall
be multiplied each Annual Period thereafter by a fraction, the
numerator of which is the then latest CPI available at the end of
the prior Annual Period, and the denominator of which is the CPI
for April, 1993.
(F) The term "Steam Component" for a month means:
(1) an amount equal to the average cost per British
thermal unit ("Btu") of all Fuel consumed by the Plant in
such month, exclusive of steam generated by a source
external to the Plant; times
(2) the total Btu's contained in all steam generated
by a source external to the Plant and delivered to the
Plant during such month, net of the Btu content of
demineralized water feed to the Plant attributable for the
same mass flow rate."
FOURTEENTH. Article 4.3(B)(2) is amended by inserting
at the end thereof the following:
"Seller shall receive a credit of 240,000 kWh for each
and every time that Buyer requests that Seller curtail
actual deliveries pursuant to Article 11.2(B)(3)(a)
within such twelve-month period, such that such
240,000 kWh shall be considered Delivered for purposes
of Article 4.3(A)(1) in such month so as to result in
additional payments to Seller during such month
attributable to the Fixed Component up to the
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limitation-provided in Article 4.3(B)(1); provided, however,
that Buyer's curtailment pursuant to Article 11.2(B)(3)(a)
during the months of October through May shall not be credited
for the months June, July, August, or September."
FIFTEENTH. Article 4.3(B)(4) is amended by inserting
at the end thereof the following:
"Seller shall receive a credit of 240,000 kWh for each
and every time that Buyer requests that Seller curtail
actual deliveries pursuant to Article 11.2(B)(3)(a)
within such twelve-month period, such that such
240,000 kWh shall be considered Delivered for purposes
of Article 4.3(A)(3) in such month so as to result in
additional payments to Seller during such month
attributable to the 0 & M Component up to the
limitation provided in Article 4.3(B)(3); provided,
however, that Buyer's curtailment pursuant to
Article 11.2(B)(3)(a) during the months of October
through May shall not be credited for the months June,
July, August, or September."
SIXTEENTH. Article 4.3(C)(1)(a) is amended by deleting "Article
11.2(D)" therefrom and inserting in lieu thereof "Article 11.2(E)".
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SEVENTEENTH. The following is inserted as Article 4.3(D):
" (D) Commencing on May 1, 1993 and each Annual Period thereafter,
Buyer shall pay Seller the Incremental 0 & M Component. The initial
payment of the Incremental 0 & M Component shall be due on or before
July 1, 1993, and the payment of the Incremental 0 & M Component for
each Annual Period thereafter shall be due on or before the twentieth
(20th) day of the first month of each such Annual Period. Buyer's
obligation to pay Seller the Incremental 0 & M Component shall
terminate in the event Buyer provides Seller with written notice, at
least thirty (30) days prior to the commencement of the following
Annual Period, that Buyer waives its rights of curtailment under
Article 11.2(B)(3)(a) beginning with the commencement of such
following Annual Period; provided, however, that Buyer may withdraw
such waiver upon written notice to Seller, at least twelve (12) months
prior to the commencement of any Annual Period, that Buyer reassumes
the obligation to pay Seller the Incremental 0 & M Component beginning
with the commencement of such Annual Period."
EIGHTEENTH. Article 4.5 is amended by deleting the last sentence
thereof and inserting in lieu thereof the following:
"Seller's capacity shall be deemed unavailable for delivery if Buyer's
Interconnection Facilities necessary to deliver Electricity to Buyer
are
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unavailable, except if such unavailability is due to Buyer's failure
to diligently perform its obligations under this Agreement."
NINETEENTH. Article 6.1 is amended by inserting "(A)" immediately
prior to "Buyer shall pay" in the first line thereof, and by inserting the
following as Article 6.1(B):
" (B) (1) Buyer shall have the right to off set against any payment
owed by Buyer under this Article 6 the following expenses:
(a) annual expenses related to the operation and
maintenance of the Dedicated Facilities (other than Buyer's
Interconnection Facilities) at the rate specified in Buyer's
applicable tariff; provided, that in no event shall Buyer be
entitled in any Annual Period to off-set amounts described in
this Article 6.1(B)(1)(a) greater than nine percent (9%) of the
capital costs incurred for the construction of the Dedicated
Facilities (exclusive of Buyer's Interconnection Facilities) as
such capital costs are determined for New York City real property
tax purposes for each tax year beginning in July of such Annual
Period. The Parties acknowledge that, as of December 1, 1993, the
total capital costs incurred for the construction of the
Dedicated Facilities subject to this Article 6.1(B)(1)(a) is
fifteen million
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three hundred and twenty-two thousand dollars ($15,322,000).
(b) expenses incurred by Buyer for operation and maintenance
(including repair or replacement) of Buyer's Interconnection
Facilities, namely:
(i) any labor, material or third party costs
reasonably incurred with respect to Buyer's Interconnection
Facilities, including the performance of Buyer's obligations
under the agreements listed in paragraphs (i) through (iv)
of the Assignment and Conveyance dated December 22, 1993
between Buyer and Seller;
(ii) Buyer's annual comprehensive public liability
insurance costs covering Buyer's Interconnection Facilities;
(iii) annual real property taxes applicable or
assessed against Buyer's Interconnection Facilities, the
term "real property taxes" as used herein meaning all taxes
and assessments levied, assessed, or imposed at any time by
the City of New York, or by any other governmental
authority, upon or against Buyer's Interconnection
Facilities relating to the ownership, use or occupancy of
Buyer's Interconnection Facilities; and
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(iv) costs, expenses, losses or liabilities
reasonably incurred related to Buyer's Interconnection
Facilities to which Buyer is subject or which Buyer may
sustain solely by reason of (A) Buyer's performance of its
obligations under this Agreement and under the Assignment
and Conveyance dated December 22, 1993 between Buyer and
Seller, or (B) Buyer's acquisition (free of any mortgage,
mechanic or materialmen liens), ownership, use, or occupancy
of Buyer's Interconnection Facilities related to carrying
out its obligations under this Agreement and under the
Assignment and Conveyance dated December 22, 1993 between
Buyer and Seller (all such costs, expenses, losses or
liabilities herein referred to collectively as "Costs").
Such Costs include Costs arising under, or of complying
with, any environmental laws or regulations including
expenses for response to or remediation of any spill or leak
into the Xxxxxx Kill or other areas, and reasonable
attorneys fees related to such Costs.
(2) Buyer shall have the right to off-set expenses described
in Article 6.1(B)(1)(a), Article 6.1(B)(1)(b)(ii) , and Article 6.1(B)(1)(b)
(iii), plus any taxes or charges payable by Buyer relating to such off-set,
beginning in
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the month of June in each Annual Period, and the expenses described in Article
6.1(B)(1)(b)(i) and Costs described in Article 6.1(B)(1)(b)(iv), plus any taxes
or charges payable by Buyer relating to such off-set, beginning in the month
following the date such expenses are incurred. At the time of such off-set,
Buyer shall provide Seller with invoices and supporting documentation regarding
any expenses described in Article 6.1(B)(1).
(3) To the extent that the amounts Buyer may off-set under
Article 6.1(B)(1) are in excess of any payment owed by Buyer under this Article
6, Seller shall pay Buyer the amount of such excess, within thirty (30) days of
Seller's receipt of Buyer's invoice and supporting documentation under Article
6.1(B)(2) and Buyer's statement under Article 6.2(A).
(4) To the extent that any Costs described in Article 6.1(B)(1)
(b)(iv) may be incurred by Buyer, as a condition of exercising its right to set-
off such Costs under this Article 6.1(B), Buyer shall:
(a) promptly furnish Seller with reasonably prompt written
notification after Buyer becomes aware of any event or
circumstance which might give rise to the incurrence by Buyer of
any such Costs;
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(b) permit Seller to participate in the defense of any suit
asserting a claim that would cause Buyer to incur any such
Costs; and
(c) not compromise or settle a claim that would cause it to
incur any such Costs without the prior written consent of
Seller, unless in the reasonable opinion of Buyer such claim may
involve the possibility of imposition of a criminal penalty on
Buyer."
TWENTIETH. Article 7.1 is amended by deleting "Point of
Interconnection" therefrom and inserting in lieu thereof "physical
interconnection of the Direct Interconnection at Buyer's Goethals Substation",
and by deleting the last sentence thereof.
TWENTY-FIRST. Article 7.4 is amended by inserting to the point of
physical interconnection of the Direct Interconnection at Buyer's Goethals
Substation" immediately after "transformation losses" in the second sentence
thereof.
TWENTY-SECOND. Article 8.3(B) is amended by deleting the word "and" at
the end thereof; Article 8.3(C) is deleted in its entirety; and the following is
inserted in lieu thereof:
" (C) reimburse Buyer for the costs and expenses incurred in
connection with the installation of the Dedicated Facilities by
Buyer under Article 8.4(A);
(D) reimburse Buyer for fifty percent (50%) of the costs and
expenses incurred with the purchase and installation of any
Series Reactors
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installed by Buyer, within thirty (30) days of receipt by Seller
of any invoice indicating that such Series Reactors have been
delivered to Buyer, provided that in no event shall Seller's
liability under this Article 8.3(D) exceed two million dollars
($2,000,000);
(E) have the option, after termination of this Agreement
due to a default by Buyer, or after expiration of the later of
the Base Term or any renewal term under Article 2.2, to utilize
Buyer's Interconnection Facilities for purposes of making
deliveries of electric power to Buyer's transmission system for
an annual fee of ten dollars ($10) plus any costs described in
Article 6.1(B)(1)(b), provided that: (i) Seller provides Buyer
with written notice of its intent to exercise such option at
least ninety (90) days prior to such expiration; (ii) the option
described in this Article 8.3(E) shall not be exercised after
April 30, 2091; (iii) Buyer's ownership interest in Buyer's
Interconnection Facilities shall not in any way interfere with
Seller's use of the Buyer's Interconnection Facilities for
purposes of making deliveries of electric power to Buyer's
transmission system during any period in which Seller has
exercised the option described in this Article 8.3(E); and (iv)
unless requested by Seller and agreed to by the Parties at a
reasonable rate as may be
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determined by the Parties, Seller's exercise of the option
described in this Article 8.3(E) shall not require Buyer to
purchase or deliver to others Seller's electric power, shall not
require Buyer to operate and maintain the Dedicated Facilities
(other than Buyer's Interconnection Facilities), and shall not
in any way restrict Buyer's use of the Dedicated Facilities
(other than Buyer's Interconnection Facilities) for any purpose;
and
(F) with regard to Buyer's Interconnection Facilities, have
the option to perform the obligations of Buyer under the
agreements listed in paragraphs (i) through (iv) of the
Assignment and Conveyance dated December 22, 1993 between Buyer
and Seller, upon Buyer's failure to perform such obligations
after notice by Seller to Buyer giving Buyer reasonable
opportunity to perform thereunder under the circumstances."
TWENTY-THIRD. Article 8.4 is deleted in its entirety and the following
is inserted in lieu thereof:
" 8.4 Buyer's Responsibility.
(A) Buyer shall design, construct, acquire, install,
operate and maintain (subject to Article 8.3(F)), and own the Dedicated
Facilities. All Dedicated Facilities shall remain the property of Buyer.
Buyer shall provide Seller with adequate access to Buyer's
Interconnection Facilities in the event Seller exercises its option
pursuant to Article 8.3(F). The Parties shall cooperate with each other
regarding
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the coordination of the operation and maintenance of Buyer's
Interconnection Facilities with the operation and maintenance activities
of Seller with regard to the electrical interconnection facilities from
the Plant to the Point of Interconnection. The Parties agree to enter
into coordination procedures as soon as practicable after January 1,
1994.
(B) Buyer's ownership interest in Buyer's Interconnection
Facilities shall not in any way interfere with Seller's Deliveries of
Electricity from the Plant to Buyer. Without the prior written consent
of Seller, Buyer shall not utilize Buyer's Interconnection Facilities
for any purpose other than for activities related to this Agreement. If
Buyer, or anyone acting by, through, or under Buyer, utilizes Buyer's
Interconnection Facilities for any purpose other than for activities
related to this Agreement, Buyer shall pay Seller an amount which shall
reflect the value of such use or uses, and any costs described in
Article 6.1(B)(1)(b) related to the Buyer's Interconnection Facilities
shall be immediately reduced, on an equitable basis reflecting such
other use or uses, and any dispute between the Parties regarding such
payment or reduction shall be subject to arbitration by the PSC in
accordance with procedures similar to those set forth in 16 NYCRR Part
12.
(C) Buyer shall keep and maintain comprehensive public liability
insurance covering Buyer's Interconnection Facilities consistent with
the
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insurance coverages Buyer otherwise maintains for such type of property.
Such insurance shall be included in Buyer's program of annual insurance
coverage and the costs shall be pro-rated to Buyer's Interconnection
Facilities. Buyer shall provide Seller with sufficient information
regarding the basis for such proration. Upon Seller's request, Buyer
shall obtain additional insurance coverage for Buyer's interconnection
Facilities with Seller named as an additional insured on any such
policy, provided that Seller reimburses Buyer for any such additional
coverage."
TWENTY-FOURTH. Article 8.5 is amended by deleting "such facilities"
in the second line thereof and inserting "of the Dedicated Facilities" in lieu
thereof.
TWENTY-FIFTH. Article 8.6 is deleted in its entirety.
TWENTY-SIXTH. Article 9.2 is amended by deleting "at the price set
for such purchase in accordance with the PSC's final determination in Case 29318
or, if not set," therefrom.
TWENTY-SEVENTH. Article 11.2(B)(3) is deleted in its entirety and the
following is inserted in lieu thereof:
" (3) by giving Seller at least: (a) twelve (12) hours prior notice,
that Seller curtail actual deliveries for an eight (8) hour period
which falls within 10:00 p.m. and 8:00 a.m. (Eastern Time) of any
Weeknight Period down to an output level of 150 MW below eighty-
two
17
percent (82%) of the DMNC, provided that Buyer may not request
such curtailment more than one hundred (100) times during any
Annual Period, provided further that Buyer shall use its best
efforts to schedule such curtailment for any week by noon
(Eastern Time) on the Sunday of such week, and
(b) twenty-four (24) hours prior notice, during
the last ten (10) Annual Periods of the Base Term, that Seller
curtail actual deliveries down to an output level not less than
forty-seven percent (47%) of the DMNC, provided that Buyer may
not exceed in any such Annual Period a ratio of one (1)
curtailment request under this Article 11.2(B)(3)(b) for each
fifty (50) hours of Plant operation not subject to a request
under this Article 11.2(B)(3)(b)."
TWENTY-EIGHTH. Article 11.2(C) is deleted in its entirety. Article
11.2(D), Article 11.2(E), and Article 11.2(F) are redesignated as Article
11.2(E), Article 11.2(F), and Article 11.2(G), respectively. The following is
inserted as Article 11.2(C) and Article 11.2(D):
" (C) Beginning on October 1, 1993, during any period in which:
(1) Buyer has otherwise requested that Seller curtail
actual deliveries pursuant to Article 11.2(B)(2), and
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(2) when the outdoor temperature at the Plant is at or
below 25 degrees Fahrenheit, Seller may increase its actual
deliveries to Buyer up to an output level not more than 150 MW
below eighty-two percent (82%) of the DMNC.
(D) For purposes of Article 11.2(B):
(1) the term "Weeknight Period" means any Off-Peak
Period commencing on any Monday, Tuesday, Wednesday, or Thursday
that does not fall within any weekend Period;
(2) the term "Weekend Period" means the period from
10:00 p.m. Friday through 8:00 a.m. the following Monday
(Eastern Time), including: (a) any Holiday occurring on either a
Friday or Monday, such that any Holiday occurring on a Friday
shall cause the Weekend Period to commence at 10:00 p.m.
(Eastern Time) on the Thursday immediately preceding such
Holiday, and any Holiday occurring on a Monday shall cause the
Weekend Period to end at 8:00 a.m. (Eastern Time) on the Tuesday
immediately following such Holiday; and (b) the Holidays of New
Year's Day, Independence Day, Thanksgiving, and Christmas when
such Holidays occur on either a Thursday or a Tuesday, and shall
include the Monday immediately preceding such Holiday (in the
case where such Holiday occurs on a Tuesday), or the Friday
immediately following such Holiday (in the case where such
Holiday occurs on a Thursday), such
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that any such Holiday occurring on a Thursday shall cause the
weekend Period to commence at 10:00 p.m. (Eastern Time) on the
Wednesday immediately preceding such Holiday, and any such
Holiday occurring on a Tuesday shall cause the Weekend Period
to end at 8:00 a.m. (Eastern Time) on the Wednesday immediately
following such Holiday; and
(3) the term "Holiday" means any of the following days
as are officially observed in the State of New York: (i) New
Year's Day, (ii) Xxxxxx Xxxxxx Xxxx, Xx.'s Birthday, (iii)
President's Day, (iv) Memorial Day, (v) Independence Day, (vi)
Labor Day, (vii) Columbus Day, (viii) Veteran's Day, (ix)
Thanksgiving, and (x) Christmas."
TWENTY-NINTH. The following is inserted as Article 11.5:
" 11.5 Voltage Support. Seller shall provide
voltage support to Buyer's electric system at the Point
of Interconnection, to be measured at Buyer's Goethals
Substation, as shall be requested by Buyer from time to
time, to the extent of 0.90 lagging to 0.96 leading,
and shall use best efforts to provide such voltage
support to the extent of 0.85 lagging to 0.95 leading,
which best efforts shall not require Seller to incur
any additional expense or revenue loss. Seller will
conduct further study of the physical ability and
associated cost of providing additional voltage support
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to Buyer's electric system at the Point of Interconnection,
to be measured at Buyer's Goethals Substation, to the extent
of 0.85 lagging to 0.85 leading, and will report to Buyer with
the results of such study upon Seller's completion and
review of such study. Seller shall not be obligated hereunder
to take any action based upon the results of such study."
THIRTIETH. Article 13.1(A) is deleted in its entirety and the
following is inserted in lieu thereof:
" (A) Recognizing that the DMNC for the first Annual Period has been
determined to be 637.7 MW, Buyer received a credit of one million
three hundred and fifty thousand dollars ($1,350,000) against
amounts of Electricity purchased from the Plant during the first
Annual Period. Beginning with the second Annual Period, AND for
every Annual Period thereafter, the DMNC shall be determined as
follows:
(1) At such times as are specified in Article 13.1(D),
a capability test shall be conducted to determine the DMNC of
the Plant in accordance with the applicable procedures of the
then-current New York Power Pool's "Uniform method for Rating
Generating Capability." Such procedures are currently designated
as MP 2-11. The DMNC shall be the sustained maximum net output
of the Plant as metered at Buyer's Goethals Substation averaged
over a four (4) hour period,
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adjusted to reflect: (a) the average ambient temperature
experienced at the Plant at the time of Buyer's summer peaks
during the previous four (4) xxxxxxx, and (b) the four (4) hour
average minimum steam sendout from the Plant to Seller's thermal
customers during the On-Peak Periods for the period June 1
through September 15 in the twelve (12) months for which the
DMNC is being determined, using a conversion rate where for each
50 lbs. of water flowing through the steam turbine and
thereafter being exported as steam, the kW capacity of the steam
turbine will be increased by 1 kW.
(2) The four (4) hour average minimum steam sendout to
Seller's thermal customers during On-Peak Periods for the period
of June 1 through September 15 shall be determined by excluding
any hours in which: (i) there is no steam sendout to Seller's
thermal customers; (ii) a purchaser of steam from the Plant
experienced an equipment outage, whether planned or unplanned,
for any reason other than economic considerations, which reduced
by 50,000 lbs./hr. or more the amount of steam from the Plant
that would otherwise have been delivered to Seller's thermal
customers; (iii) the Plant experienced an outage, whether
planned or unplanned, which
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reduced by 50,000 lbs./hr. or more the amount of steam from the
Plant that would otherwise have been delivered to Seller's
thermal customers; or (iv) Buyer suspended or curtailed its
purchases of Electricity under the terms and conditions of this
Agreement, which reduced by 50,000 lbs./hr. or more the amount
of steam from the Plant that would otherwise have been delivered
to Seller's thermal customers. Until the actual average steam
sendout is determined for each June 1 to September 15 period,
capacity payments to Seller shall be based on the actual average
steam sendout determined for such period in the prior year. If
the actual average steam sendout as determined at the end of
such period is different from the assumed amount, the DMNC shall
be adjusted to reflect the actual average steam sendout and
appropriate adjustments in payments shall be made within thirty
(30) days of such determination.
(3) Seller shall maintain, for the period of June 1
through September 15, records of steam sendout to Seller's
thermal customers which Seller shall make available to Buyer
for purposes of paragraph (2) above.
(4) in the event the DMNC for any period as determined
in this Article 13.1(A) exceeds 645 MW, then the DMNC for such
period
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shall be deemed to be 645 MW for purposes of this Agreement."
THIRTY-FIRST. Article 18.2(A) is amended by inserting immediately
before "Seller" in the first line thereof "Unless expressly provided otherwise
in this Agreement,".
THIRTY-SECOND. Article 22.1(A) is amended by deleting "States of New
York and" therefrom and inserting "State of" in lieu thereof.
THIRTY-THIRD. Article 23 is amended by deleting "not become effective
as to the Parties or their successors until such amendment is accepted or
approved by the PSC" therefrom and inserting in lieu thereof the following:
"require the prior written consent of the Lender pursuant to the
Recognition Agreement dated September 20, 1991 among Buyer, Seller,
State Street Band and Trust Company of Connecticut, National
Association (as "Owner Trustee"), and Union Bank of Switzerland, New
York Branch (as "Agent")"
THIRTY-FOURTH. Article 24.3 is deleted in its entirety and the
following is inserted in lieu thereof:
" (A) To Seller:
at 0000 Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxx X. XxXxxx
President and CEO
copy to Cogen Technologies Linden Venture, L.P.
Xxx Xxxxx Xxxxxx
00xx Xxxxx
Xxxx Xxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxx
Vice President
24
copy to Xxx Xxxx, Xxxxxxx & Xxxxxx, P.C.
0000 Xxxxxx Xxxxxxxxx Xx., X.X.
Xxxxxxx Xxxxx
Xxxxxxxxxx, X.X. 00000
Attention: Xxxx X. Ain, Esq.
Partner
copy to State Street Bank and Trust Company
000 Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Corporate Trust Department
copy to General Electric Power Funding Corporation
Xxx Xxxxx Xxxx
Xxxxxxxx Xxx, Xxxx 000
Schenectady, New York 12345
Attention: Vice President - Investments
copy to General Electric Capital Corporation - T&IFC
0000 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Vice President - Energy Project operations
(B) To Buyer:
at 0 Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Vice President-Planning
and Inter-Utility Affairs
copy to 0 Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Vice President,
System Operations
copy to 0 Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxx, Esq.
Asst. General Counsel"
THIRTY-FIFTH. The following is inserted as Article 24.8:
" 24.8 Service. Seller hereby irrevocably submits to the
jurisdiction of the courts of the State of New York with regard
to any controversy arising out of or relating to this Agreement.
Seller agrees that service of process on Seller in relation to
such jurisdiction
25
may be made, at the option of Buyer, either by registered
or certified mail addressed to Seller at the address shown
in Article 24.3 or at the address of any office actually
maintained by Seller, or by actual personal delivery to
Seller. Such service shall be deemed to be sufficient when
jurisdiction would not lie because of the lack of a basis
to serve process in the manner otherwise provided by law.
In any case, however, process may be served as stated above
whether or not it may be properly served in a different manner."
THIRTY-SIXTH. Appendix A is deleted in its entirety and Appendix A
hereto is inserted in lieu thereof.
THIRTY-SEVENTH. The Parties acknowledge that Buyer and Seller have
each performed certain obligations set forth in the Agreement and do not, by
this Amendment, wish to raise questions with regard to such performance.
THIRTY-EIGHTH. All terms and conditions of the Agreement not
expressly amended herein shall remain in full force and effect.
THIRTY-NINTH. This Amendment supplements the Agreement, and
supersedes any and all prior understandings between the Parties with regard to
the subject matters herein. The letter agreements between the Parties dated
April 9, 1992 and March 26, 1993 are hereby superseded and do not have any force
and effect.
26
FORTIETH. All corporate action required for Buyer and Seller to
execute, deliver, and perform their respective obligations under this Amendment
and the Agreement as amended hereby have been completed, and no approval by the
Public Service Commission of the State of New York is required for Buyer to
execute, deliver, and perform its obligations under this Amendment and the
Agreement as amended hereby.
FORTY-FIRST. This Amendment shall be governed by and construed in
accordance with the laws of the State of New York.
IN WITNESS WHEREOF the Buyer and Seller have caused this Second
Amendment to be executed by their proper officers thereunto duly authorized as
of the date first written above.
CONSOLIDATED EDISON COMPANY COGEN TECHNOLOGIES LINDEN
OF NEW YORK, INC. VENTURE, L.P.
By: Cogen Technologies Linden
Ltd., its General Partner
By: Cogen Technologies, Inc.,
its General Partner
By: /s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxxxx Xxxxx
--------------------------- -------------------------------
Xxxxxxx X. Xxxxxxx Xxxxxx Xxxxx
Vice President Vice President
27
