EXHIBIT 10.PP
BAYONNE MUTUAL RELEASE AGREEMENT
BAYONNE MUTUAL RELEASE AGREEMENT, dated as of October 31, 2002
(this "Agreement"), between Cogen Technologies NJ Venture, a New Jersey general
partnership ("Bayonne"), and Jersey Central Power & Light Company ("JCP&L").
WITNESSETH:
WHEREAS, Bayonne and JCP&L have entered into an Agreement for
Purchase of Electric Power dated October 29, 1985, as amended by the First
Amendment thereto dated September 5, 1986, and the Second Amendment thereto
dated August 15, 1988 (the "Original Power Purchase Agreement") pursuant to
which Bayonne sold generating capacity and associated energy to JCP&L from its
cogeneration facility located in Bayonne, New Jersey (the "Facility");
WHEREAS, JCP&L and Power Contract Finance, L.L.C. ("PCF")
entered into an Amended and Restated Power Purchase Agreement dated as of
February 27, 2002, to amend and restate the Original Power Purchase Agreement
(the "Amended PPA") to, among other things, entitle JCP&L to a restructuring
credit in respect of the amounts of energy and capacity sold under the Original
Power Purchase Agreement, and permit energy and capacity to be supplied from
sources other than the Facility;
WHEREAS, the transfer of Bayonne's rights and obligations
under the Original Power Purchase Agreement to PCF and the execution of this
Agreement are conditions precedent to the effectiveness of the Amended PPA; and
WHEREAS, Bayonne and JCP&L desire to enter into mutual
releases of all claims between them under the Original Power Purchase Agreement;
NOW, THEREFORE, in consideration of the mutual releases herein
set forth, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. JCP&L remises, releases and forever discharges, and by
these presents does, for its successors and assigns, remise, release and forever
discharge Bayonne and Bayonne's parent, subsidiary and affiliated companies, and
their present, former and future officers, directors, shareholders, agents,
partners and employees (collectively, the "Bayonne Parties") from all claims,
demands, actions, causes of action, duties, debts, suits, reckonings, contracts,
controversies, agreements, promises, damages, responsibilities, liabilities and
accounts of whatever kind, nature or description direct or indirect, in law or
in equity, in contract or in tort or otherwise, which JCP&L, now has,
has had, or may have against any of the Bayonne Parties by reason of any matter,
cause or thing in any way arising under the Original Power Purchase Agreement
prior to the effective date of the Amended PPA (the "Effective Date"), whether
known or unknown at the date of the effectiveness of this Agreement, or which
may be based, in whole or in part, upon pre-existing acts, claims or events
occurring at any time or times up to the date of the effectiveness of this
Agreement which may result in future claims or damages; provided, however, that
nothing in this Agreement shall be deemed to release Bayonne from any obligation
pursuant to the Original Power Purchase Agreement which it may have to deliver
electrical power to JCP&L prior to the Effective Date.
2. Bayonne remises, releases and forever discharges, and by
these presents does, for its successors and assigns, remise, release and forever
discharge JCP&L and JCP&L's parent, subsidiary and affiliated companies, and
their present, former and future officers, directors, shareholders, agents,
partners and employees (the "JCP&L Parties"), from all claims, demands, actions,
causes of action, duties, debts, suits, reckonings, contracts, controversies,
agreements, promises, damages, responsibilities, liabilities and accounts of
whatever kind, nature or description direct or indirect, in law or in equity, in
contract or in tort or otherwise, which Bayonne, now has, has had, or may have
against any of the JCP&L Parties by reason of any matter, cause or thing in any
way arising under the Original Power Purchase Agreement prior to the Effective
Date, whether known or unknown at the date of the effectiveness of this
Agreement, or which may be based, in whole or in part, upon pre-existing acts,
claims or events occurring at any time or times up to the date of the
effectiveness of this Agreement which may result in future claims or damages;
provided, however, that nothing in this Agreement shall be deemed to release
JCP&L from any obligation pursuant to the Original Power Purchase Agreement
which it may have to pay Bayonne for electrical power delivered to JCP&L prior
to the Effective Date.
3. As of the Effective Date, Bayonne forever relinquishes and
waives any rights it may have or may have in the future under the Public Utility
Regulatory Policies Act of 1978 ("PURPA"), 16 U.S.C. Section 824a.3 et seq., or
any federal or state regulation or order implementing PURPA, to sell power to
JCP&L or any affiliate thereof from the Facility other than as JCP&L or such
affiliate may agree. Bayonne shall cause any third party successor to Bayonne's
rights and interest in the Facility to agree to be bound by the foregoing
covenant.
4. Bayonne shall defend, indemnify and hold harmless JCP&L
from and against any and all claims, liabilities, obligations, actions, demands,
judgments, losses, costs, expenses (including reasonable attorneys' fees),
suits, proceedings and damages (individually, a "Claim" and collectively,
"Claims") asserted against or suffered or incurred by JCP&L in connection with
breach of Section 3 of this Agreement by Bayonne or its successors or assigns,
including any third-party successor to Bayonne's rights and interest in the
Facility.
5. This Agreement shall be deemed to be made under, governed
by and construed in accordance with the laws of the State of New Jersey.
2
6. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns,
including any third-party successor to Bayonne's rights and interest in the
Facility. The Bayonne Parties and the JCP&L Parties are third-party
beneficiaries of this Agreement.
7. This Agreement may not be modified or changed except by an
instrument in writing signed by or on behalf of each of the parties hereto. This
Agreement may be executed in one or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.
8. Each party hereto acknowledges that it has read the terms
of this Agreement, that such terms are fully understood by it, that it has the
authority to enter into this Agreement, and that it has entered into this
Agreement voluntarily with full knowledge of the effect hereof.
9. Anything to the contrary herein notwithstanding, this
Agreement and the waivers, releases and discharges contained herein shall become
effective only upon the occurrence of the Effective Date and receipt by JCP&L of
the payment provided for in Article III, Section C of the Amended PPA, as
modified by Section 6 of the Waiver and Consent Agreement being executed and
delivered by JCP&L and PCF simultaneously herewith.
3
IN WITNESS WHEREOF, the undersigned have executed this
Agreement as of the date first above written.
JERSEY CENTRAL POWER & LIGHT COMPANY
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President and Controller
COGEN TECHNOLOGIES NJ VENTURE
By: EAST COAST POWER BAYONNE
GP, LLC,
its managing partner
By: /s/ Xxxx X. Xxxxxxxx
--------------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Chief Financial Officer and
Treasurer
