EXHIBIT 10.JJ
THIRD PARTY CAPACITY PAYMENTS AGREEMENT
THIRD PARTY CAPACITY PAYMENTS AGREEMENT ("Agreement"), dated
as of April 25, 2000, among COGEN TECHNOLOGIES LINDEN VENTURE, L.P., a Delaware
Limited Partnership (the "Partnership"); COGEN TECHNOLOGIES LINDEN, LTD., a
Texas Limited Partnership; STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION (not in its individual capacity but solely as Owner
Trustee), as Limited Partner; STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION (not in its individual capacity but solely as
Owner Trustee), as Lender, and PNC BANK, N.A., as successor to Midlantic
National Bank, as Security Agent and as Escrow Agent (the "Escrow Agent").
WHEREAS, the Partnership, Cogen Technologies Linden, Ltd., the
Owner Trustee, as Limited Partner and Lender, and the Escrow Agent are party to
that certain Amended and Restated Security Deposit Agreement and Escrow
Agreement, dated as of September 17, 1992 (the "PNC Security Deposit
Agreement").
WHEREAS, the Partnership and Consolidated Edison Company of
New York, Inc. ("Con Ed") propose to enter into a Third Amendment to Power
Purchase Agreement to be effective as of August 1, 1999 (the "Third Amendment")
in connection with that certain Power Purchase Agreement, dated April 14, 1989,
between Con Ed and Cogen Technologies, Inc., as assigned to the Partnership and
as amended by the First Amendment to Power Purchase Agreement, dated September
17, 1990, and the Second Amendment to Power Purchase Agreement dated December
22, 1993.
WHEREAS, the Owner Trustee has executed the Owner Trustee's
Consent for Third Amendment to Power Purchase Agreement, dated as of August 1,
1999 (the "Owner Trustee's Consent"), substantially in the form of Exhibit A
hereto;
WHEREAS, pursuant to the PNC Security Deposit Agreement, all
capacity payments ("Third Party Capacity Payments") received by the Partnership
from a Third Party (as defined in the Third Amendment), pursuant to any
agreement (a "Third Party Contract") under which the Partnership sells Excess
Capacity and Excess Energy (each as defined in the Third Amendment) to such
Third Party, shall be deposited into the Revenue Account established under the
PNC Security Deposit Agreement.
NOW, THEREFORE, the parties hereto hereby agree as follow:
1. Definitions. Unless otherwise defined herein, terms defined
in the PNC Security Deposit Agreement and used herein shall have the meanings
given to them in the PNC Security Deposit Agreement.
2. Third Party Capacity Payments. (a) The parties hereby agree
that any provisions of the PNC Security Deposit Agreement to the contrary
notwithstanding, upon receipt of any Third Party Capacity Payments, the Agent
shall retain such Third Party Capacity Payments (the "Retained Amounts") in the
Revenue Account and shall not release any Third Party Capacity Payments from the
Revenue Account until an event described in clauses (b) or (c) below occurs. The
Managing General Partner shall provide to the Agent and the Owner Trustee a copy
of any Third Party Contract pursuant to which Third Party Capacity Payments are
received and shall provide to the Agent and the Owner Trustee written
notification, at least 5 days prior to the Transfer Date, of the amount received
under each such Third Party Contract for the previous month.
(b) In the event that any Third Party under any Third Party
Contract becomes entitled to the receipt of any damages from the Partnership
pursuant to the terms of such Third Party Contract, a Responsible Officer of the
Managing General Partner shall provide to the Agent a certificate substantially
in the form of Exhibit B to this Agreement. Upon receipt of such certificate,
the Agent shall pay to such Third Party an amount equal to the lesser of the
Retained Amounts and the amount indicated in the certificate described in the
preceding sentence; provided, that under no circumstances shall the Agent
transfer, or be liable for, an amount in excess of the retained Amounts with
respect to the Third Party Contract under which any damages are due and payable.
(c) If (i) a Third Party Contract has terminated and Retained
Amounts remain in the Revenue Account and (ii) the Agent has received a
certificate from a Responsible Officer of the Managing General Partner
substantially in the form attached as Exhibit C to this Agreement, the
restriction on the transfer of Retained Amounts with respect to such Third Party
Contract described in clause (a) of this Section 2 shall have no further effect
and the Agent shall transfer the Retained Amounts pertaining to such Third Party
Contract in accordance with Sections 4.01 and 4.02 of the PNC Security Deposit
Agreement.
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3. Interest on Third Party Capacity Payments. Notwithstanding
the provisions of Section 4.08 of the PNC Security Deposit Agreement, any
interest or other income on the Retained Amounts shall be transferred either (i)
to a Third Party, upon the same conditions and simultaneously with the transfer
of the Retained Amounts described in Section 2(b) of this Agreement or (ii) in
accordance with Sections 4.01 and 4.02 of the PNC Security Deposit Agreement
upon the same conditions and simultaneously with the transfer of the Retained
Amounts described in Section 2(c) of this Agreement.
4. Successors; Assignment; Third Party Beneficiary. The Terms
of this Agreement shall be binding upon, and shall inure to the benefit of, the
parties hereto and their respective successors and assigns. It is expressly
agreed and acknowledged hereby that because of the amounts payable by and
obligations to be performed by the Owner Trustee under the Second Amended and
Restated Tranche A Loan Agreement dated as of September 15, 1992 (as amended,
supplemented or otherwise modified from time to time, the "Tranche A Loan
Agreement") among the Owner Trustee, the Tranche A Banks (as defined therein,
the "Tranche A Banks") and Credit Suisse First Boston, as agent for the Tranche
A Banks; and the Tranche B Loan Agreement, dated as of September 15, 1992 (as
amended, supplemented or otherwise modified from time to time, the "Tranche B
Loan Agreement"), among the Owner Trustee, the Tranche B Lenders (as defined
therein, the "Tranche B Lenders"), and General Electric Capital Corporation, as
agent for the Tranche B Lenders, the Collateral Agent (as defined in the Tranche
A Loan Agreement and the Tranche B Loan Agreement) shall be a third party
beneficiary under this Agreement and shall be entitled to enforce its
third-party beneficiary rights under this Agreement directly against the Owner
Trustee and General Electric Power Funding Corporation.
5. Conditions to Effectiveness. This Agreement shall become
effective on the date on which it shall have been duly executed and delivered by
the parties hereto and duly accepted and acknowledged by General Electric Power
Funding Cororation.
6. Governing Law. This Agreement shall be construed in
accordance with and governed by the laws of the State of New York.
7. Counterparts. This Agreement may be executed by one or more
of the parties hereto on any number of separate counterparts, all of which taken
together shall be deemed to constitute one and the same instrument.
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[SIGNATURES APPEAR ON THE FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed and acknowledged by their respective officers or
representatives hereunto duly authorized on the date first above written.
COGEN TECHNOLOGIES LINDEN
VENTURE, L.P., a Delaware Limited Partnership
By: Cogen Technologies Linden, Ltd.
(d/b/a) Cogen Technologies Linden,
Limited Partnership, in the State
of New Jersey), its General
Partner
JEDI Linden GP, L.L.C.
its General Partner
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Xxxxxx X. Xxxxxx
President
COGEN TECHNOLOGIES LINDEN, LTD.
(d/b/a) COGEN TECHNOLOGIES LINDEN,
LIMITED PARTNERSHIP, in the State of
New Jersey), a Texas Limited Partnership
JEDI Linden GP, LLC
its General Partner
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Xxxxxx X. Xxxxxx
President
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STATE STREET BANK AND TRUST COMPANY
OF CONNECTICUT, NATIONAL ASSOCIATION, (not
in its individual capacity but solely as
Owner Trustee), as Limited Partner
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------------
Xxxxxx X. Xxxxxxx
Vice President
STATE STREET BANK AND TRUST COMPANY
OF CONNECTICUT, NATIONAL ASSOCIATION
(not in its individual capacity but solely
as Owner Trustee), as Lender
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------------
Xxxxxx X. Xxxxxxx
Vice President
PNC Bank, N.A.
as Agent
By: /s/ Xxxxx X. Xxxxx
---------------------------------------
Xxxxx X. Xxxxx
Vice President
CONSENTED AND AGREED TO AS OF
THE DATE FIRST ABOVE WRITTEN:
GENERAL ELECTRIC POWER FUNDING
CORPORATION, as Lender Agent
By: /s/ X. X. Xxxxxxxx
------------------------
X. X. Xxxxxxxx
Vice President
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