1
EXHIBIT 10.12
NOTE: This document is an electronic draft and should not be relied on in lieu
of the version that was executed by Cogen Technologies and Infineum on February
4, 1999. Any questions regarding the terms of the contracts should be addressed
by referral to the executed documents.
AGREEMENT
BETWEEN
COGEN TECHNOLOGIES LINDEN VENTURE, L.P.
(d/b/a COGEN TECHNOLOGIES LINDEN VENTURE, LIMITED PARTNERSHIP)
AND
EXXON CORPORATION
FOR THE SALE OF STEAM
AUGUST 1, 1990
AS AMENDED AND RESTATED
BY AND BETWEEN
COGEN TECHNOLOGIES LINDEN VENTURE, L.P.
(d/b/a/ COGEN TECHNOLOGIES LINDEN VENTURE, LIMITED PARTNERSHIP)
AND
INFINEUM USA L.P.
FEBRUARY 4, 1999
2
TABLE OF CONTENTS
Page
----
RECITALS 2
ARTICLE 1
DEFINITIONS
1.1 "Affiliate" 5
1.2 "Agreement" 5
1.3 "Annual Period" 5
1.4 "Base Term" 5
1.5 "Bayway Refining Company" 5
1.6 "Btu" 5
1.7 "Cogeneration Facility" 5
1.8 "Commercial Operation" 6
1.9 "Date of Initial Commercial Operation" 6
1.10 "Demised Premises" 6
1.11 "Infineum's Complex" 6
1.12 "Infineum's External Steam Requirements" 6
1.13 "Infineum's Property" 6
1.14 "ExxonTurbo Oil" 7
1.15 "Financier" 7
1.16 "Force Majeure" 7
1.17 "Governmental Authorizations" 8
1.18 "Ground Lease" 8
1.19 "Ground Lease Agreement" 8
1.20 "Improvements Removal Period" 8
1.20A "Infineum's Technology Center" 8
1.21 "K lbs." 8
1.21A "Owner Trust" 8
1.22 "Party" 9
1.23 "Points of Delivery of Steam" 9
1.24 "psig" 9
1.25 "Steam" 9
1.26 "Steam Interconnection Facilities" 9
1.27 "Weighted Average Cost of Gas" 9
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ARTICLE 2
TERM
2.1 Base Term of Agreement 10
2.2 Renewal of Agreement 10
2.3 Cut-Off Date 10
ARTICLE 3
SALE OF STEAM
3.1 General 11
3.2 Reduced Deliveries 14
3.3 Routine Scheduling 16
3.4 Quality of Steam 16
3.5 Points of Delivery 17
ARTICLE 4
COST OF STEAM
4.1 Monthly Steam Charge 17
4.2 Annual Steam Adjustment 17
4.3 Monthly Initial Steam Commitment Credit 18
4.4 Annual Initial Steam Commitment Credit Adjustment 18
4.5 Cumulative Adjustments and Credits 18
ARTICLE 5
OTHER RIGHTS AND OBLIGATIONS OF PARTIES
5.1 Rights and Obligations of Cogen 19
5.2 Rights and Obligations of Infineum 19
ARTICLE 6
MEASUREMENT AND METERING
6.1 Units of Measurement 21
6.2 Cogen's Measuring Equipment 21
6.3 Infineum's Measuring Equipment 22
6.4 Means of Measurement and Notice to Cogen 22
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6.5 Testing and Corrections 23
A. Testing of Cogens Meters 24
B. Testing of Infineum's Meters 24
C. Other Testing of Meters 24
D. Costs of Testing 24
E. Corrections of Measuring Equipment 24
6.6 Maintenance 25
ARTICLE 7
BILLING AND RECORDS
7.1 Billing 26
A. Monthly Xxxx to Infineum 26
B. Annual Adjustments 26
C. Other Adjustments 27
7.2 Payment and Penalties 27
A. Payment 27
B. Interest 27
7.3 Disputes 28
7.4 Records 28
ARTICLE 8
TAXES 28
ARTICLE 9
AUTHORITY
9.1 Authority of Infineum 29
9.2 Authority of Cogen 29
ARTICLE 10
FORCE MAJEURE
10.1 Definition 30
10.2 Burden of Proof 31
10.3 Condition 31
10.4 Labor Disputes 32
10.5 Termination for Force Majeure 32
10.6 Cogen's Right to Temporary Cure 32
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ARTICLE 11
BREACH OF CONTRACT AND TERMINATION
11.1 Infineum's Right to Terminate 35
11.2 Cogen's Right to Terminate 36
11.3 Automatic Termination 38
11.4 Notice to the Financier, Lenders and Mortgagees 39
11.5 Effective Date of Termination 40
11.6 Transition 42
ARTICLE 12
LIABILITY
12.1 Limitation on Liability for Damages 43
12.2 Damages 45
12.3 Specific Performance 45
ARTICLE 13
NONWAIVER 46
ARTICLE 14
NOTICE AND SERVICE
14.1 Notice 46
14.2 Date of Service 46
A. Mail 46
B. Telegram 47
C. Personal Service 47
14.3 Addresses 47
X. Xxxxx 47
B. Infineum 47
ARTICLE 15
AMENDMENTS 48
ARTICLE 16
SUCCESSORS AND ASSIGNS
16.1 Assignment by Infineum 48
16.2 Assignment by Cogen 48
16.3 Continuing Obligations 49
16.4 [Intentionally Omitted] 50
16.5 Transfers of Part of Infineum's Complex 50
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16.6 [Intentionally Omitted] 52
16.7 Rights of the Financier and Other Lenders 52
16.8 Status Certificates 58
ARTICLE 17
CHOICE OF LAW 58
ARTICLE 18
RENEGOTIATION 58
ARTICLE 19
CONSENT NOT TO BE UNREASONABLY WITHHELD 59
ARTICLE 20
OTHER AGREEMENTS 59
ARTICLE 21
CAPTIONS 60
ARTICLE 22
COUNTERPARTS 60
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EXHIBIT A
PART 1: CALCULATION OF MONTHLY STEAM CHARGE 62
PART 2: CALCULATION OF ANNUAL STEAM ADJUSTMENT 64
PART 3: CALCULATION OF MONTHLY INITIAL STEAM
COMMITMENT CREDIT 65
PART 4: CALCULATION OF ANNUAL INITIAL STEAM
COMMITMENT CREDIT ADJUSTMENT 66
EXHIBIT B
DESCRIPTION OF POINTS OF DELIVERY OF STEAM 69
EXHIBIT C
PRO FORMA MONTHLY INVOICE 70
EXHIBIT D
[INTENTIONALLY OMITTED] 71
EXHIBIT E
EXAMPLE OF PRO RATA ALLOCATION OF STEAM 72
EXHIBIT F
[INTENTIONALLY OMITTED] 76
EXHIBIT G-1
ASSUMPTION AGREEMENT 77
EXHIBIT G-2
ASSUMPTION AGREEMENT 79
EXHIBIT G-3
ASSUMPTION AGREEMENT 81
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EXHIBIT H
CONSENT TO ASSIGNMENT 84
EXHIBIT I
RECOGNITION AGREEMENT 87
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AGREEMENT
BETWEEN
COGEN TECHNOLOGIES LINDEN VENTURE, L.P.
(d/b/a COGEN TECHNOLOGIES LINDEN VENTURE, LIMITED PARTNERSHIP)
AND
EXXON CORPORATION
FOR THE SALE OF STEAM
AUGUST 1, 1990
AS AMENDED AND RESTATED
BY AND BETWEEN
COGEN TECHNOLOGIES LINDEN VENTURE, L.P.
(d/b/a/ COGEN TECHNOLOGIES LINDEN VENTURE, LIMITED PARTNERSHIP
AND
INFINEUM USA L.P.
An AGREEMENT was made and entered into effective August 1, 1990, by and
between Cogen Technologies Linden Venture, L.P., doing business in New Jersey as
Cogen Technologies Linden Venture, Limited Partnership ("Cogen"), a Delaware
limited partnership, and Exxon Corporation ("Exxon"), a New Jersey corporation
and on January 1, 1999, Exxon assigned all of its right, title and interest in
that Agreement to Infineum USA L.P., a Delaware limited partnership
("Infineum"). Cogen and Infineum (collectively "Parties") desires to and do
hereby amend and restate that Agreement as of January 1, 1999, in its entirety
as follows.
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RECITALS
WHEREAS, RCM Holdings, Inc. (previously known as Cogen Technologies,
Inc.), has entered into a Power Purchase Agreement dated April 14, 1989 ("Power
Purchase Agreement") with Consolidated Edison Company of New York, Inc.
("Consolidated Edison"), under which RCM Holdings, Inc. sells to Consolidated
Edison electricity from a cogeneration facility ("Cogeneration Facility")
located in Linden, New Jersey. The Power Purchase Agreement was approved by the
Public Service Commission of the State of New York and became effective in
September, 1989 and has been assigned to Cogen. The Cogeneration Facility is a
qualifying cogeneration facility as defined in Section 3(18) of the Federal
Power Act and the regulations thereunder. Cogen and Consolidated Edison
contemplate that the Power Purchase Agreement will remain in force for
twenty-five (25) years from the "Date of Initial Commercial Operation" (as
defined in Article 1.8 below) and possibly for two (2) additional five (5) year
renewal terms;
WHEREAS, Infineum owns, operates and maintains "Infineum's Complex" (as
defined in Article 1.11 below) which is located at Linden, New Jersey and which
utilizes steam for industrial purposes;
WHEREAS, Cogen has constructed and owns, operates, and maintains the
Cogeneration Facility on the "Demised Premises" (as defined in Article 1.10
below) upon which the Cogeneration Facility is located;
WHEREAS, the Demised Premises are located near Infineum's Complex;
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WHEREAS, Cogen desires to sell steam to Infineum from the Cogeneration
Facility for use at Infineum's Complex and Infineum desires to purchase such
steam from Cogen;
WHEREAS, Exxon and Cogen desired to set forth in writing their
respective rights and obligations with respect to the matters set forth above
and therefore on August 1, 1990 entered into an Agreement for the Sale of Steam
(the "Original Agreement") for Cogen's sale to Exxon of steam produced by
Cogen's Cogeneration Facility;
WHEREAS, Exxon and Cogen subsequently entered into a Letter Agreement
("Letter Agreement") dated September 27, 1991, and a Recognition Agreement
("Recognition Agreement") dated September 17, 1992, both amending the Original
Agreement;
WHEREAS, On January 1, 1999, Exxon assigned to Infineum all of its
right, title, and interest in and to the Original Agreement, the Letter
Agreement and the Recognition Agreement and Infineum assumed all obligations and
liabilities thereunder arising on or after January 1, 1999;
WHEREAS, Exxon and Cogen previously entered into a Ground Lease
Agreement dated August 1, 1990 (the "Ground Lease Agreement") for Cogen's lease
from Exxon of certain real property located at the site of the Bayway Refinery
for Cogen's construction and operation of the Cogeneration Facility;
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WHEREAS, Exxon sold its interest in the Bayway Refinery to Bayway
Refining Company on April 8, 1993, and no longer has any steam requirements for
the Bayway Refinery;
WHEREAS, Exxon entered into an Assignment of Lease with Bayway Refining
Company on April 8, 1993, wherein Exxon assigned to Bayway Refining Company all
of Exxon's interest in and to the Ground Lease Agreement;
WHEREAS, the Agreement and the Ground Lease Agreement are no longer
interdependent;
WHEREAS, Cogen simultaneously herewith is entering into an agreement
with Bayway Refining Company for Cogen's sale to Bayway Refining Company of
steam produced by the Cogeneration Facility for use at the Bayway Refinery,
replacing, in part, Cogen's sale of such steam to Exxon under the Original
Agreement;
WHEREAS, the "Points of Delivery of Steam" (as defined in the
Agreement) are located at the site of the Bayway Refinery and are no longer
directly connected to facilities owned by Infineum for the receipt of Cogen's
steam; and
WHEREAS, in light of the matters set forth above, the Parties desire to
amend and restate their respective rights and obligations in their entirety and
to reflect such further amendments in the Agreement as are contained herein;
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and other valuable consideration, receipt and sufficiency of which are
hereby
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acknowledged, the Parties hereby amend and restate the Agreement in its entirety
follows:
ARTICLE 1
DEFINITIONS
The following terms when used herein shall have the following meanings:
1.1 "Affiliate" means a corporation or other entity that directly or
indirectly, through one or more intermediaries, controls or is controlled by, or
is under common control with, another corporation or other entity.
1.2 "Agreement" means this contract, including all exhibits and
amendments thereto that may be made from time to time.
1.3 "Annual Period" means any one of a succession of consecutive twelve
(12) month periods, the first of which shall begin on the Date of Initial
Commercial Operation.
1.4 "Base Term" of this Agreement has the meaning set forth in Article
2.1.
1.5 "Bayway Refining Company" means the Bayway Refining Company as well
as its successors and assigns.
1.6 "Btu" means British Thermal Unit.
1.7 "Cogeneration Facility" means the cogeneration facility constructed
by Cogen on the Demised Premises. The Cogeneration Facility excludes the
cogeneration unit which might be installed by Bayway Refining Company on the
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Demised Premises, as more fully described in Section 7.1 of the Ground Lease
Agreement.
1.8 "Commercial Operation" means the production of electricity by
Cogen at the Cogeneration Facility upon the completion of such testing of the
Cogeneration Facility as Cogen determines is required by prudent electrical
practices, and the supply of Steam at the Points of Delivery of Steam.
1.9 "Date of Initial Commercial Operation" means the first day of the
month which immediately follows the date Cogen designates in writing to
Consolidated Edison as the initial date of Commercial Operation of its
Cogeneration Facility, which first day of the month occurred on May 1, 1992.
1.10 "Demised Premises" means those two parcels of land which total
approximately 12.36 acres on the site of Bayway Refining Company's refinery and
which were leased to Cogen pursuant to the Ground Lease Agreement, as described
more particularly in Article 1 and Exhibit B of the Ground Lease Agreement.
1.11 "Infineum's Complex" means Infineum's chemical plant (formerly
Exxon Chemical Company's Chemical Plant) located at Linden, New Jersey.
1.12 "Infineum's External Steam Requirements" means the quantity of
steam used by Infineum to operate Infineum's Complex and Infineum's Technology
Center.
1.13 "Infineum's Property" means the real property interests, if any,
and of whatever nature in and to the land upon which Infineum's Complex is
located.
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1.14 "Exxon Turbo Oil" means Exxon Company, U.S.A., Turbo Oil located
at Linden, New Jersey.
1.15 "Financier" initially means the Owner Trust, and may also mean any
other entity subsequently extending credit to Cogen for the construction,
operation, maintenance, repair, replacement, or removal of the Cogeneration
Facility and other "Improvements" (as defined in Article 1 of the Ground Lease
Agreement), or any entity subsequently providing funds for the refinancing or
taking-out of such loans, and the nominees or designees of any such entities;
provided that, at no time will Infineum be obligated to recognize more than one
such entity as the Financier to whom duties are owed, or rights are granted,
under this Agreement and the Ground Lease Agreement. Infineum will recognize as
the Financier for purposes of this Agreement and the Ground Lease Agreement (i)
the Owner Trust, until such time as the Owner Trust or the Lender's Agent (as
set forth in the recognition agreement executed and delivered to the Owner Trust
by Infineum) notifies Infineum in writing that such other party should be
considered to be the Financier, and (ii) thereafter, the designated party, until
such time as such designated party, notifies Infineum in writing that Cogen has
the right to designate another entity as the Financier, and (iii) thereafter,
such other entity as Cogen may designate in writing from time to time.
1.16 "Force Majeure" has the meaning set forth in Article 10.1.
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1.17 "Governmental Authorizations" means any and all licenses, permits,
certificates and other authorizations required by applicable federal, state, or
local law.
1.18 "Ground Lease" means the creation of a leasehold estate in the
Demised Premises, as set forth in Article 1 of the Ground Lease Agreement.
1.19 "Ground Lease Agreement" means the agreement of August 1, 1990
between Cogen and Exxon for the lease of the Demised Premises to Cogen,
including all exhibits and amendments thereto that may be made from time to
time, as such agreement was assigned by Exxon to Bayway Refining Company by that
certain Assignment of Lease dated April 8, 1993.
1.20 "Improvements Removal Period" means that part of the term of the
Ground Lease for the removal of certain "Improvements" (as defined in Article 1
of the Ground Lease Agreement), including the Cogeneration Facility, as set
forth in Article 1 of the Ground Lease Agreement.
1.20A "Infineum's Technology Center" means Infineum's Technology Center
(formerly Exxon's Technology Center) located at Linden, New Jersey.
1.21 "K lbs." means 1,000 pounds of steam mass.
1.21A "Owner Trust" means the trust established pursuant to the Trust
Agreement dated as of December 28, 1990, between State Street Bank and Trust
Company of Connecticut, National Association, and Linden Owner Partnership, as
the same may be amended from time to time.
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1.22 "Party" means Cogen or Infineum, as the case may be, and its
permitted successors and assigns.
1.23 "Points of Delivery of Steam" means the points where Cogen's steam
supply system connects to Bayway Refining Company's steam pipeline at Bayway
Refining Company's existing steam headers, as indicated on Exhibit B.
1.24 "psig" means pound per square inch gauge.
1.25 "Steam" means steam for Infineum's Complex meeting the
specifications set out in Article 3.4 of this Agreement.
1.26 "Steam Interconnection Facilities" means Cogen's facilities
required for the delivery of Steam to the Points of Delivery of Steam, including
service stop valves, meter stop valves, primary and secondary service pressure
reducing valves, meter supports, protection devices, meters, pipe systems,
pipelines, venting, and other facilities required to connect the Cogeneration
Facility to the Points of Delivery of Steam in order to effectuate the purposes
of this Agreement.
1.27 "Weighted Average Cost of Gas" means the average cost of natural
gas of Consolidated Edison and Public Service Electric and Gas Company (or their
successors) based upon volumes of natural gas purchased by such utilities during
the month in question as set forth in Consolidated Edison's Operating and
Financial Report filed monthly with the Public Service Commission of the State
of New York, and as set forth in Public Service Electric and Gas Company's
Commodity Charge Applicable to Cogeneration Interruptible Service filed monthly
with the State of New Jersey Board of Public Utilities.
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ARTICLE 2
TERM
2.1 Base Term of Agreement. This Agreement shall be effective August 1,
1990 and will continue thereafter until April 30, 2017 (the "Base Term"), unless
sooner terminated in accordance with the terms of this Agreement.
2.2 Renewal of Agreement. This Agreement shall be automatically renewed
for two (2) periods of five (5) additional Annual Periods each, commencing with
the expiration of the Base Term pursuant to Article 2.1, unless either Party
elects to terminate this Agreement at the expiration of the Base Term or at the
expiration of the first five (5) year renewal term. Termination by Infineum
shall be valid only if Infineum provides Cogen written notice of its intent to
terminate at least five and one-half (5 1/2) years prior to the expiration of
the Base Term or at least five and one-half (5 1/2) years prior to the
expiration of the first five (5) year renewal term, as the case may be.
Termination by Cogen shall be valid only if Cogen provides Infineum written
notice of its intent to terminate at least four (4) years prior to the
expiration of the Base Term or at least four (4) years prior to the expiration
of the first five (5) year renewal term, as the case may be.
2.3 Cut-Off Date. In no event shall this Agreement extend beyond
January 1, 2033, without the written consent of both Parties.
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ARTICLE 3
SALE OF STEAM
3.1 General.
A. Commencing on January 1, 1999, Cogen shall sell to Infineum and
deliver to the Points of Delivery of Steam, Steam for Infineum's Complex and
Infineum's Technology Center up to a maximum rate of 181 K lbs. per hour for the
months October through and including May, and up to a maximum rate of 109 K lbs.
per hour for the months June through and including September. This delivery of
Steam shall be uninterrupted. Cogen will have met its obligation to sell to
Infineum and deliver uninterrupted Steam for Infineum's Complex and Infineum's
Technology Center to the Points of Delivery of Steam, if it maintains pressure
and flow (to the extent that flow is within Cogen's control and flow is not
otherwise requested to be interrupted by Bayway Refining Company, provided that
Cogen immediately notifies Infineum of any such request by Bayway Refining
Company) at the Points of Delivery of Steam as determined by the Cogeneration
Facility's control equipment. In the event of an upset or other emergency at
Infineum's Complex or Infineum's Technology Center during the months June
through and including September, Cogen shall sell to Infineum and deliver to the
Points of Delivery of Steam, Steam for Infineum's Complex and Infineum's
Technology Center up to a maximum rate of 181 K lbs. per hour for the duration
of such upset or emergency. In addition, if at any time Infineum requests Steam
at Infineum's Complex and
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Infineum's Technology Center in excess of 181 K lbs. per hour during the months
October through and including May, or in excess of 109 K lbs. per hour during
the months June through and including September, Cogen shall meet such request
to the extent Cogen is able to do so, provided that Cogen is not materially
adversely affected under the Power Purchase Agreement or Cogen's other
agreements to sell steam to other steam users.
B. Infineum shall purchase and use from Cogen at least 158,556 K
lbs. of Infineum's External Steam Requirements in each Annual Period. Infineum
may at any time take steam subject to Infineum's obligations set forth in the
preceding sentence, from any other source upon reasonable notice to Cogen.
C. Infineum's External Steam Requirements at Infineum's Complex
and Infineum's Technology Center are presently estimated, but not guaranteed, to
be 843,460 K lbs. per Annual Period. Cogen recognizes that Infineum may reduce,
terminate, or change the nature of its operations at Infineum's Complex or
Infineum's Technology Center and that Infineum's External Steam Requirements
might be reduced below 158,556 K lbs. per Annual Period or eliminated as a
result. However, if Infineum elects to cease all or substantially all industrial
operations in Infineum's Complex (other than because of Force Majeure) with the
results described in Article 11.2E, Cogen may elect to terminate this Agreement
pursuant to Article 11.2E.
D. If Infineum, during the term of this Agreement, decides to make
substantial changes in the nature of its industrial operations in Infineum's
Complex
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(other than because of Force Majeure) with the probable result that Infineum's
maximum rate of Steam taken from Cogen under Articles 3.1A and 3.1B would
permanently fall below both 127 K lbs. per hour for the months October through
and including May and 72 K lbs. per hour for the months June through and
including September, Infineum shall give Cogen prompt written notice of such
decision. In that event, if Cogen so requests, Infineum and Cogen shall work
together to revise Cogen's obligations as defined in Article 3.1A, so that Cogen
shall continue to be obligated to provide to Infineum the Steam which Infineum
needs for its changed operations and so that Cogen shall have the opportunity to
seek and obtain other customers for the volume of Infineum's External Steam
Requirements no longer needed by Infineum.
E. If Infineum is impacted by Force Majeure which causes
Infineum's External Steam Requirements from Cogen under this Agreement to fall
below 79,278 K lbs. of Steam for any consecutive six (6) month period (an
average of 18 K lbs. of Steam per hour on a six (6) month basis), and if Cogen,
with Infineum's Steam take from Cogen in combination with the steam take from
Cogen's other steam customers, would be unable, in Cogen's reasonable judgment,
to maintain the status of the Cogeneration Facility as a "qualifying
cogeneration facility" (as defined in Section 3(18) of the Federal Power Act and
the regulations thereunder) for at least five (5) gas turbines, Cogen, by prompt
written notice to Infineum, may reduce its obligation in Article 3.1A to provide
181 K lbs. of Steam per hour to 145 K lbs. of Steam per hour. The purpose of
this reduction in Cogen's
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obligation in Article 3.1A would be to give Cogen a reasonable opportunity to
maintain the status of the Cogeneration Facility as a "qualifying cogeneration
facility" by obtaining other customers for up to 36 K lbs. per hour of its steam
from October through and including May and, during upsets or emergencies, from
June through and including September. If Cogen's obligation to sell and deliver
Steam to Infineum is reduced as described in this Article 3.1E, and if
subsequently the Force Majeure impacting Infineum abates, Infineum may request
Cogen to reinstate the original rate of 181 K lbs. of Steam per hour under
Article 3.1X. Xxxxx'x obligation under this Article 3.1E shall revert to the
original rate of 181 K lbs. of Steam per hour under Article 3.1A twenty-four
(24) months following Cogen's receipt of a written notice from Infineum
requesting such reversion, unless the Parties mutually agree upon an earlier
date for such reversion.
3.2 Reduced Deliveries.
A. Should Cogen be unable to deliver and sell the quantity of
Steam required to be delivered and sold to Infineum under Article 3.1A due to a
reduction in the amount of steam being generated by the Cogeneration Facility
due to Force Majeure, Infineum shall have the right to a pro rata allocation of
steam being generated, delivered and sold from the Cogeneration Facility in
relation to Cogen's delivery of steam to Bayway Refining Company and American
Cyanamid Company ("Cyanamid") pursuant to an agreement between Cogen and Bayway
Refining Company for the sale of steam, and a potential agreement between Cogen
and Cyanamid for the sale of steam to be executed at a future date. Such pro
rata
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allocation shall be based on Infineum's, Bayway Refining Company's and
Cyanamid's previous twenty-four (24) hours of demand for steam from the
Cogeneration Facility at the time of reduction of the amount of steam being
generated and available for delivery and sale.
B. Should Cogen fail for any reason to deliver to Infineum the
Steam that Cogen is required to deliver to Infineum under Article 3.1, Infineum
shall have the right immediately to obtain, and shall not be deemed in breach of
this Agreement if it obtains, replacement steam from any other source (within or
external to Infineum's Complex) for the duration of Cogen's failure to provide
the Steam. If Cogen does fail for any reason (other than because of Force
Majeure) to deliver to Infineum the Steam that Cogen is required to deliver to
Infineum under this Article 3, and if Infineum obtains replacement steam from
any other source, Cogen shall reimburse Infineum for any difference between
Infineum's reasonable cost for the replacement of such steam and the cost
Infineum would have incurred in buying Steam under Articles 3 and 4. To the
extent that Cogen's failure to deliver Steam is excused by Force Majeure, Cogen
shall owe Infineum no money for any such difference in cost. The cost which
Infineum would have incurred in buying Steam under Articles 3 and 4 shall be
calculated as provided in Article 10.6B.
C. Notwithstanding Article 5.2A of this Agreement, Infineum shall
not be liable to Cogen for Steam actually delivered by Cogen to the Points of
Delivery of Steam in accordance with Article 3.1A of this Agreement, but that is
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not received by Infineum; provided that such failure to receive Steam was not
caused by Infineum in contravention of this Agreement. Cogen shall not be liable
to Infineum (including liability for replacement Steam) due to Infineum's
failure to receive Steam if such failure is due to Bayway Refining Company's
failure or refusal to deliver such Steam to Infineum.
3.3 Routine Scheduling. Commencing with the Date of Initial Commercial
Operation, Infineum shall, at any time upon Cogen's request, give Cogen its best
estimate of its expected requirements for Steam from the Cogeneration Facility
hereunder (including the hourly delivery rates) in such detail as follows:
A. For each calendar year, at least by December 1 of the preceding
calendar year on a monthly basis; and
B. For each month, at least ten (10) days prior to the end of the
preceding month, on a weekly basis.
Notwithstanding the foregoing, Infineum shall advise Cogen of any significant
changes in its expected requirements for Steam from the Cogeneration Facility as
soon as reasonably practicable.
3.4 Quality of Steam. All Steam shall meet either of the following
specifications: for high pressure level not less than 700 psig nor more than 740
psig at 700"-740"F, and for low pressure level not less than 130 psig nor more
than 150 psig at 440"-480"F, and for both the high pressure level and the low
pressure level, total dissolved solids and the oxygen present shall not exceed
the amounts recommended by standard industrial practices for 1500 psig steam
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systems. At Infineum's option and subject to the limits of Article 3.1A,
Infineum shall specify and Cogen shall deliver to the Points of Delivery of
Steam the amounts of high pressure and low pressure Steam that Infineum desires;
provided, however, that Cogen shall not be obligated to supply Infineum with
more than 19 K lbs. per hour of Steam at the high pressure level at any time
(except to the extent that Cogen is able to provide more than 19 K lbs. per hour
at the high pressure level, Cogen shall do so, provided that Cogen is not
materially adversely affected under the Power Purchase Agreement or Cogen's
other agreements to sell steam to other steam users) or 226 K lbs. per hour of
Steam at the low pressure level at any time (except to the extent that Cogen is
able to provide more than 226 K lbs. per hour at the low pressure level, Cogen
shall do so, provided that Cogen is not materially adversely affected under the
Power Purchase Agreement or Cogen's other agreements to sell steam to other
steam users).
3.5 Points of Delivery. Cogen shall pay for the installation and
maintenance of all Steam Interconnection Facilities.
ARTICLE 4
COST OF STEAM
4.1 Monthly Steam Charge. Infineum shall pay to Cogen the monthly steam
charge (MS) calculated pursuant to Part 1 of Exhibit A.
4.2 Annual Steam Adjustment. Subject to Article 4.5, Cogen shall
calculate and credit to Infineum the annual steam adjustment (ASA) according to
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Part 2 of Exhibit A. This adjustment reflects differences in Steam charges to
Infineum when quantities delivered to Infineum are calculated on an annualized
basis versus a monthly basis.
4.3 Monthly Initial Steam Commitment Credit. Subject to Article 4.5,
Cogen shall calculate and credit to Infineum as assignee of Exxon of the
Original Agreement, the monthly initial steam commitment credit (MC) according
to Part 3 of Exhibit A. This credit is provided because of Exxon's commitment to
purchase Steam at the initial planning stage of the development of the
Cogeneration Facility and reflects a change from Cogen's previous plan to
provide electricity to Exxon.
4.4 Annual Initial Steam Commitment Credit Adjustment. Subject to
Article 4.5, Cogen shall calculate and credit to Infineum the annual initial
steam commitment credit adjustment (ACA) according to Part 4 of Exhibit A. This
adjustment reflects differences in the monthly initial steam commitment credit
when quantities of Steam delivered to Infineum are calculated on an annualized
basis versus a monthly basis.
4.5 Cumulative Adjustments and Credits. The cumulative adjustments and
credits pursuant to Articles 4.2, 4.3 and 4.4 in any Annual Period shall not
exceed the cumulative monthly steam charge under Article 4.1 in any Annual
Period.
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ARTICLE 5
OTHER RIGHTS AND OBLIGATIONS OF PARTIES
5.1 Rights and Obligations of Cogen. In addition to the rights and
obligations of Cogen specified in Article 3 and Article 4, Cogen shall:
A. Have the right to sell any and all electric power generated at
the Cogeneration Facility in excess of the amounts Cogen is obligated
to sell to Consolidated Edison under the Power Purchase Agreement, to
any third person under such terms and conditions as Cogen, in its sole
discretion, determines to be appropriate.
B. Have the right to sell any and all steam produced at the
Cogeneration Facility that is first offered to but not purchased by
Infineum under Article 3 to any other person on such terms and
conditions as Cogen and such person shall agree, without interference
by Infineum, except that such sale shall not be conducted in such
manner as to interfere with Cogen's provision of Steam under Article 3
or with Infineum's reasonable and normal operation of Infineum's
Complex or Infineum's Technology Center.
C. Design, construct, operate, and maintain the Cogeneration
Facility to meet reliability and safety standards consistent with steam
supply to a major industrial complex and will work with Infineum so
that such reliability and safety standards are adequately addressed.
5.2 Rights and Obligations of Infineum. In addition to the rights and
obligations of Infineum specified in Article 3 and Article 4, Infineum shall:
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A. Receive Cogen's delivery of Steam under this Agreement in a
manner consistent with safety standards generally applicable to receipt
and use of steam at a major industrial complex, and make the necessary
arrangements for the delivery of Steam sold hereunder from the Points
of Delivery of Steam to Infineum at Infineum's Complex and Infineum's
Technology Center.
B. [INTENTIONALLY OMITTED]
C. Have the right to sell and deliver Steam purchased from Cogen to
any person who owns or operates facilities within Infineum's Complex,
at Infineum's Technology Center, at Exxon Turbo Oil, or on property
transferred by Exxon to Bayway Refining Company as part of the purchase
by Bayway Refining Company of Exxon's Refinery; provided, however, that
Infineum shall first provide Cogen with a declaratory order of the New
Jersey Board of Public Utilities or other official assurances
satisfactory to Cogen that such sale and delivery would not cause or
would not be likely to cause the Cogeneration Facility to cease to be a
"qualifying cogeneration facility" as defined in Section 3(18) of the
Federal Power Act and the regulations thereunder, and that such sale
and delivery would not result in Cogen, or any person having an
ownership interest in Cogen, or the Cogeneration Facility, or any
person operating the Cogeneration Facility, or any Affiliate of Cogen
or any such persons, becoming subject to or affected by regulation
under the Federal Power Act, the Public Utility Holding Company Act of
1935, or state
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laws and regulations respecting the regulation of utilities, except
reporting or safety requirements that are non-burdensome in nature. In
the event that the State of New Jersey by law, regulation or order,
does not subject the sale or delivery of steam to public utility-type
regulation (other than reporting or safety requirements that are
non-burdensome in nature), such a law, regulation or order shall
constitute an official assurance satisfactory to Cogen, for purposes of
this clause (C) of this Section 5.2; provided, that such proposed sale
or delivery of Steam meets all requirements specified in such law,
regulation or order. To the extent additional information is reasonably
required to determine if such sale or delivery of Steam meets the
requirements specified in such law, regulation or order, Cogen may
request such further information from Infineum.
ARTICLE 6
MEASUREMENT AND METERING
6.1 Units of Measurement. For the purposes of this Agreement, Steam
shall be measured in K lbs. of steam mass.
6.2 Cogen's Measuring Equipment. Cogen shall design, install, operate,
maintain, and own all measuring equipment necessary for an accurate
determination of the quantity of Steam delivered to the Points of Delivery of
Steam. Except as provided in Article 6.4, Cogen's meters shall be used for
quantity measurements under this Agreement.
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6.3 Infineum's Measuring Equipment. Infineum may design, install,
operate, maintain, and own, at its sole expense, steam measuring equipment,
provided that Infineum shall not interfere with Cogen's steam supply system or
with Cogen's measuring equipment.
6.4 Means of Measurement and Notice to Cogen. Infineum shall be
required to measure the quantity of Steam received by Infineum. Such measurement
shall be determined by one or a combination of the following methods:
A. Using the registration of any meter or meters of Infineum, if
installed and accurately registering; or
B. In the absence of an installed and accurately registering meter
of Infineum, making a calibration test or mathematical calculation, if
the percentage of error is ascertainable; or
C. In the absence of both an installed and accurately registering
meter of Infineum and an ascertainable percentage of error, estimating
by reference to quantities measured during periods under similar
conditions when Infineum's meter was registering accurately. Infineum
shall repair and recalibrate any inaccurate meter in a timely manner;
or
D. In the absence of an ability to use any of the above methods of
measurement, estimating by reference to Infineum's operating records
for
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Infineum's Complex and Infineum's Technology Center for the period in
question.
Commencing on the first day of the second calendar month subsequent to the date
Cogen first sells Steam to Infineum under this amended and restated Agreement,
and thereafter on the first day of each calendar month during the term of this
Agreement, Infineum shall determine the quantities of Steam delivered to
Infineum during the immediately preceding calendar month, and notify Cogen in
writing of such quantities on or before the seventh day of the month. Cogen
shall have the right to verify the quantities of Steam delivered to Infineum by
comparison to reports by Bayway Refining Company regarding the quantities of
Steam delivered to Infineum. In the event of any discrepancy between the
quantities of Steam delivered to Infineum as reported by Infineum and those
reported by Bayway Refining Company, Cogen shall rely, for purposes of this
Agreement, on Infineum's reported quantities pending reconciliation among Cogen,
Infineum and Bayway Refining Company of the reported quantities. In the event
that such reconciliation between the Infineum and Bayway Refining Company
reported quantities results in a revision of the reported quantities of Steam
delivered to Infineum, such revisions shall be reflected in an adjusted invoice
pursuant to Article 7.1C of this Agreement.
6.5 Testing and Corrections. All meters used by either Cogen or
Infineum for measuring the quantity of Steam received by Infineum shall be
maintained under the following procedures:
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A. Testing of Cogen's Meters. The accuracy of Cogen's measuring
equipment shall be tested and verified by Cogen at quarterly intervals
in Infineum's presence. The calibration procedure to be used under this
Article 6.5A shall be mutually agreed to by the Parties prior to the
time Cogen first delivers Steam to Infineum.
B. Testing of Infineum's Meters. The accuracy of Infineum's
measuring equipment shall be tested and verified by Infineum at
quarterly intervals in Cogen's presence. The calibration procedure to
be used under this Article 6.5B shall be the same procedure as is used
under Article 6.5A.
C. Other Testing of Meters. In the event that either Party notifies
the other that it desires a test of its own or of the other Party's
measuring equipment, the Parties shall cooperate to secure a prompt
verification of the accuracy of such equipment.
D. Costs of Testing. Each party shall bear the cost of the testing
and any required adjustments of its measuring equipment done at
quarterly intervals. In the event that one party requests a testing of
the other party's measuring equipment at other than quarterly
intervals, the requesting party shall bear the cost of the testing
unless such equipment is found to be inaccurate by greater than two
percent (2%).
E. Corrections of Measuring Equipment. If, upon testing, any
measuring equipment is found to be inaccurate by less than two percent
(2%) at a flow rate corresponding to the average hourly flow rate for
Steam
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supplied by Cogen for Infineum's Complex and Infineum's Technology
Center for the period since the last preceding test, previous
recordings of such equipment shall be considered accurate in computing
deliveries of Steam hereunder, but such equipment shall be promptly
adjusted to record correctly to the extent possible. If, upon testing,
any measuring equipment shall be found to be inaccurate by greater than
two percent (2%) at a flow rate corresponding to the average hourly
flow rate for Steam supplied by Cogen for Infineum's Complex or
Infineum's Technology Center for the period since the last preceding
test, then such equipment shall be promptly adjusted to record
properly, to the extent possible, and any previous recordings by such
equipment shall be corrected to zero error, to the extent possible, and
Cogen shall promptly send to Infineum, pursuant to Article 7, billing
adjustments based on such corrected recordings. If no reliable
information exists as to when the equipment became inaccurate, it shall
be assumed for correction purposes hereunder that such inaccuracy began
at a point in time midway between the testing date and the last
previous date on which the equipment was tested and found to be
accurate or adjusted to be accurate.
6.6 Maintenance. Each Party shall have the right to be present whenever
the other Party reads, cleans, changes, repairs, inspects, tests, calibrates, or
adjusts its measuring equipment. Each Party shall give timely notice to the
other Party in advance of taking any of such actions.
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ARTICLE 7
BILLING AND RECORDS
7.1 Billing.
A. Monthly Xxxx to Infineum. On or before the tenth (10th) day of
each month, Cogen shall prepare and deliver to Infineum an invoice setting forth
the monthly steam charge and the monthly initial steam commitment credit, as set
forth in Articles 4.1 and 4.3, for the preceding month. Such invoice shall also
set forth the other information called for in Exhibit C and shall be in the form
shown in Exhibit C. If Cogen from time to time does not know its actual cost of
fuel for purposes of Exhibit A calculations for the month in question when Cogen
prepares an invoice pursuant to this Article 7.1A, Cogen may estimate such cost
using all available data. To the extent that an estimate is provided and used
for purposes of determination of Cogen's actual cost of fuel in Exhibit A, Cogen
shall provide Infineum a statement of Cogen's actual cost of fuel as soon as
available to Cogen, and Cogen shall make the appropriate adjustment as well as
any adjustment as a result of Cogen's actual cost of fuel exceeding the cap in
Note 1 to Exhibit A, in the following month's invoice.
B. Annual Adjustments. Within thirty (30) days following the end
of each Annual Period, Cogen shall prepare and deliver to Infineum an invoice
setting forth any credits due as a result of the annual steam adjustments as set
forth in Article 4.2 and the annual initial steam commitment credit adjustment
as
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set forth in Article 4.4. Such invoice shall also set forth the other
information called for in Exhibit C and shall be in the form shown in Exhibit C.
C. Other Adjustments. Cogen shall promptly prepare and deliver to
Infineum an invoice setting forth any adjustments for discrepancies in billing
identified through meter verifications pursuant to Article 6.5E, through other
means pursuant to Article 6.4, or for any other reason which would result in
reimbursement of billed amounts to Infineum or additional payments by Infineum
to Cogen.
7.2 Payment and Penalties.
A. Payment. Infineum shall, within fifteen (15) days of the
receipt of Cogen's invoice setting forth the monthly xxxx to Infineum pursuant
to Article 7.1A, pay Cogen for all amounts billed. Cogen shall, within fifteen
(15) days after issuing its invoice setting forth annual reconciliation credits
due Infineum pursuant to Article 7.1B, pay Infineum all amounts due.
Reimbursements or additional payments pursuant to Article 7.1C shall be paid
within thirty (30) days of receipt of the billing adjustment invoice.
B. Interest. If Infineum fails to pay timely all or a portion of
the amounts billed pursuant to Article 7.1A or either Party fails to make timely
reimbursements or additional payments pursuant to Article 7.1B or 7.1C within
the time stated in this Article 7, interest on the unpaid portion shall accrue
from the date due until paid at two percent (2%) over the bank prime loan rate
as reported in Federal Reserve Statistical Release H.15 (or a successor
publication of similar
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36
authority, if Statistical Release H.15 is discontinued) for the day the payment
becomes due; provided, however, in no event shall this rate of interest exceed
the maximum rate of interest permissible under the laws of the State of New
Jersey.
7.3 Disputes. If any invoice or adjustment under Article 7.1 is
disputed by either Party and subsequently resolved, there shall be added to the
amount determined to be due Cogen or credited to the amount due Infineum, if
Infineum is due a refund, interest calculated in the same manner as for late
payments under Article 7.2B.
7.4 Records. Both Cogen and Infineum shall keep all invoices, receipts,
charts, computer printouts, punch cards, magnetic tapes, and other records
related to the volume and price of Steam sales made under this Agreement,
including Cogen's cost of fuel and Infineum's Steam metering records along with
all calculations based on such records.
Such records shall be made available for inspection and copying by
either Party or their representatives upon reasonable notice.
Each Party shall keep all such materials for a minimum of three (3)
years from the date of their preparation.
ARTICLE 8
TAXES
Infineum shall be solely responsible for any sales, use, gross
receipts, transfer, and similar taxes that may be imposed on the sale of Steam
by Cogen to
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Infineum under this Agreement and any such taxes that may be imposed on the sale
of Steam by Infineum to any other party. Cogen shall be solely responsible for
any taxes that may be imposed on the manufacture of steam by Cogen under this
Agreement.
ARTICLE 9
AUTHORITY
9.1 Authority of Infineum. Infineum hereby represents and warrants to
Cogen as follows:
A. Infineum is a limited partnership duly organized and existing in
good standing under the laws of the State of Delaware, and is qualified
to do business in the State of New Jersey.
B. Infineum possesses all requisite power and authority to enter
into and perform this Agreement and to carry out the transactions
contemplated herein.
C. No suit, action or arbitration, or legal, administrative or
other proceeding is pending against Infineum or its Affiliates that
would affect the validity or enforceability of this Agreement or the
ability of Infineum to materially fulfill its commitments hereunder.
9.2 Authority of Cogen. Cogen hereby represents and warrants to
Infineum as follows:
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X. Xxxxx is a limited partnership duly organized and existing under
the laws of the State of Delaware and is duly qualified to do business
in the State of New Jersey.
X. Xxxxx possesses all requisite power and authority to enter into
and perform this Agreement and to carry out the transactions
contemplated herein.
C. No suit, action or arbitration, or legal, administrative or
other proceeding is pending against Cogen or its Affiliates that would
affect the validity or enforceability of this Agreement or the ability
of Cogen to materially fulfill its commitments hereunder.
ARTICLE 10
FORCE MAJEURE
10.1 Definition. Except for the obligations of a Party to make payments
when due under this Agreement, the Parties shall be excused from delays in
performance or failures to perform their respective obligations hereunder and
shall not be liable in damages or otherwise, if and only to the extent that such
delays or failures are caused by Force Majeure. The term "Force Majeure" means
any cause beyond the reasonable control of the affected Party, including,
without limitation, storm, flood, lightning, drought, earthquake, fire,
explosion, civil disturbance, labor dispute, act of God or the public enemy, or
action of a court or governmental authority. Financial distress of either Party,
late delivery of materials or equipment
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(unless itself caused by Force Majeure), or inadequate performance by
contractors (unless itself caused by Force Majeure) shall not be considered
Force Majeure.
10.2 Burden of Proof. The burden of proof as to whether a Force Majeure
event or condition has occurred shall be upon the Party claiming that it should
be excused from performing its obligations hereunder due to the occurrence of
such an event or condition.
10.3 Condition. If either Party relies on Force Majeure as a basis for
being excused from performance of its obligations under this Agreement, then the
Party relying on Force Majeure shall:
A. Provide prompt oral notice to the other Party, confirmed
promptly in writing, of the occurrence of the event or condition, with
an estimate of its expected duration and the probable impact on the
performance of its obligations hereunder;
B. Exercise all reasonable efforts to continue to perform its
obligations hereunder;
C. Expeditiously take action to correct or cure the event or
condition excusing performance to the extent reasonably practicable;
D. Exercise all reasonable efforts to mitigate or limit damages to
the other Party; and
E. Provide prompt oral notice to the other Party, confirmed
promptly in writing, of the cessation of the event or condition giving
rise to its excusal from performance.
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10.4 Labor Disputes. This Article 10 shall not require the settlement
of any strike, walkout, lockout, or other labor dispute on terms which, at the
discretion of the Party involved, are contrary to its interests. The settlement
of such labor disputes shall be at the sole discretion of the Party involved.
10.5 Termination for Force Majeure. If, after the Date of Initial
Commercial Operation, Cogen is excused from performing its obligations hereunder
due to Force Majeure, and such Force Majeure continues in effect for a period of
six (6) months after the initial event or condition of Force Majeure, subject to
Article 10.6, Infineum may terminate this Agreement, effective on the last day
of such six (6) month period or thereafter, by giving Cogen and the Financier
identified in Article 11.4 at least thirty (30) days' prior written notice.
Failure by Cogen to perform its obligations due to Force Majeure or the failure
by Cogen to implement one of the alternatives described in subparagraph (i),
(ii), or (iii) of Article 10.6A shall not be considered a breach of this
Agreement by Cogen.
10.6 Cogen's Right to Temporary Cure.
A. If after the Date of Initial Commercial Operation Cogen is
prevented for a period of six (6) months by Force Majeure from delivering to
Infineum Steam in accordance with Article 3 from the Cogeneration Facility,
Cogen, at its option, may prevent Infineum from terminating this Agreement
pursuant to Article 10.5, and will be in compliance with this Agreement, by:
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41
(i) supplying Steam from temporary boilers or otherwise
to Infineum's Complex and Infineum's Technology
Center in an amount, quality, and at a cost as
provided in Articles 3 and 4; or
(ii) paying to Infineum the cost of procurement and
installation by Infineum of temporary boilers to
supply steam to Infineum's Complex and Infineum's
Technology Center in an amount and quality as
provided in Article 3 and paying Infineum any
difference between the cost to Infineum of generating
such steam and the cost Infineum would have incurred
in buying Steam under Articles 3 and 4, provided that
this option shall not apply unless Infineum is
reasonably able to procure, install, and operate such
temporary boilers; or
(iii) paying to Infineum any difference between Infineum's
cost for steam purchased from Public Service Electric
and Gas Company (or its successor) or any company
from whom Infineum buys steam and the cost Infineum
would have incurred in buying Steam under Articles 3
and 4;
from the end of the six (6) month period described in Article 10.5 until either
the Force Majeure no longer prevents Cogen from delivering Steam in accordance
with Article 3 from the Cogeneration Facility, or until twenty-four (24) months
after Cogen gives Infineum written notice that Cogen does not intend to continue
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xxxxxxxx xx xxxxxxxxxxxx (x), (xx), or (iii) above. If Cogen elects to continue
the Agreement in force by implementing one of the alternatives described in
subparagraph (i), (ii), or (iii) above, it must give Infineum at least ninety
(90) days' prior written notice to that effect and such notice must specify
which alternative Cogen elects. In the event that Cogen subsequently gives
Infineum such written notice that it does not intend to continue pursuant to
subparagraph (i), (ii), or (iii) above, the termination of this Agreement
pursuant to Article 10.5 shall be effective twenty-four (24) months after Cogen
gives Infineum such written notice.
B. For purposes of determining the cost which Infineum would have
incurred in buying Steam under Articles 3 and 4, the cost of Cogen's fuel for
the Exhibit A calculations shall conclusively be deemed to be the Weighted
Average Cost of Gas. Additionally, the cost which Infineum would have incurred
in buying Steam under Articles 3 and 4 shall include payments or credits to
Infineum for the annual steam adjustment, monthly initial steam commitment
credit, and annual initial steam commitment credit adjustment.
C. The implementation by Cogen of one of the alternatives
described in subparagraphs (i), (ii), and (iii) of Article 10.6A and subsequent
termination of this Agreement by Cogen on twenty-four (24) months' prior written
notice to Infineum shall not be considered a breach of this Agreement by Cogen.
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ARTICLE 11
BREACH OF CONTRACT AND TERMINATION
11.1 Infineum's Right to Terminate. Subject to Article 11.4, Infineum
shall have the right, at its option, to terminate this Agreement upon the
occurrence of any of the following events:
X. Xxxxx breaches this Agreement by failing to substantially
perform any material obligation under this Agreement, which failure
continues for a period of sixty (60) days after Infineum gives Cogen
and the Financier identified in Article 11.4 written notice of such
breach; provided, however, that if such breach may not reasonably be
cured within such sixty (60) day period, Infineum may not terminate
this Agreement pursuant to this Article 11.1A if Cogen diligently
commences to cure such breach within such sixty (60) day period, and
this Agreement shall remain in effect for so long as Cogen diligently
continues such efforts, unless such breach continues uncured for six
(6) months after Infineum's written notice of breach to Cogen and the
Financier identified in Article 11.4; or
X. Xxxxx fails to commence Commercial Operation by July 1, 1993
(as such date may be extended by Force Majeure pursuant to the terms of
Article 2.3A), or to initiate any of the alternative arrangements
described in Article 2.3B, and Infineum gives Cogen and the Financier
identified in Article 11.4 thirty (30) days' prior written notice of
termination pursuant to Article 2.3A; or
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X. Xxxxx claims that it is excused after the Date of Initial
Commercial Operation from failing to deliver Steam to Infineum from the
Cogeneration Facility due to Force Majeure and does not within six (6)
months either resume full performance or initiate one of the
alternative arrangements described in Article 10.6, and Infineum gives
Cogen and the Financier identified in Article 11.4 thirty (30) days'
prior written notice of termination pursuant to Article 10.5; or
D. Infineum elects to terminate this Agreement at the expiration
of the Base Term or at the expiration of the first five (5) year
renewal term, as the case may be, by giving to Cogen and the Financier
identified in Article 11.4 five and one-half (5-1/2) years' prior
written notice of termination, as provided in Article 2.2.
11.2 Cogen's Right To Terminate. Cogen shall have the right, at its
option, to terminate this Agreement upon the occurrence of any of the following
events:
A. Infineum breaches this Agreement by failing to make timely
payment to Cogen of the monthly Steam charges pursuant to Article 7,
which failure continues for a period of thirty (30) days after Cogen
gives Infineum written notice of such failure to pay; or
B. Infineum breaches this Agreement by failing to substantially
perform any material obligation under this Agreement, other than
payment of amounts due as described in Article 11.2A, which failure
continues for a period of sixty (60) days after Cogen gives Infineum
written notice of such
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breach; provided, however, that if such breach may not reasonably be
cured within such sixty (60) day period, Cogen may not terminate this
Agreement pursuant to this Article 11.2B, if Infineum diligently
commences to cure such breach within such sixty (60) day period, and
this Agreement shall remain in effect for so long as Infineum
diligently continues such efforts, unless the breach continues uncured
for six (6) months after Cogen's written notice of breach to Infineum;
or
X. Xxxxx fails to commence Commercial Operation by the date
specified in Article 2.3A, but initiates one of the alternative
arrangements described in Article 2.3B, and subsequently gives Infineum
twenty-four (24) months' prior written notice under Article 2.3B that
Cogen does not intend to continue such arrangement; or
X. Xxxxx claims that it is excused from failing to perform its
obligations under this Agreement due to Force Majeure, initiates one of
the alternative arrangements described in Article 10.6, and
subsequently gives Infineum twenty-four (24) months' prior written
notice under Article 10.6 that Cogen does not intend to continue such
arrangement; or
E. Infineum's External Steam Requirements from Cogen under this
Agreement fall below 57,080 K lbs. of Steam in any Annual Period (other
than because of Force Majeure) and Cogen, with Infineum's External
Steam Requirements from Cogen in combination with the steam demand from
Cogen's other steam customers, is unable to maintain the status of the
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Cogeneration Facility as a "qualifying cogeneration facility" (as
defined in Section 3(18) of the Federal Power Act and the regulations
thereunder) for at least two (2) gas turbines, and Cogen subsequently
gives Infineum six (6) month's prior written notice of termination of
this Agreement; or
X. Xxxxx elects to terminate this Agreement at the expiration of
the Base Term or at the expiration of the first five (5) year renewal
term, as the case may be, by giving to Infineum four (4) years' prior
written notice of termination, as provided in Article 2.2.
Any notice from Cogen to Infineum of termination of this Agreement will be
effective only if such notice either (i) is joined in by the Financier in
writing, if there is a Financier then in existence, or (ii) certifies on its
face that there is no Financier.
11.3 Automatic Termination. This Agreement shall automatically
terminate as of the effective date set forth in Article 11.5 below if:
A. The Ground Lease terminates under Section 16.3B of the Ground
Lease Agreement (relating to full taking of the Demised Premises);
B. The Ground Lease enters the Improvements Removal Period or
terminates for any other reason; or
C. This Agreement continues in effect until January 1, 2033, and
is not extended by the written consent of the Parties.
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11.4 Notice to the Financier, Lenders and Mortgagees.
A. Infineum shall have no right to terminate this Agreement for
breach pursuant to Article 11.1A, 11.1B, or 11.1C, until Infineum (i) has
provided the Financier substantially the same notice which Infineum is obligated
to provide Cogen pursuant to Article 11.1A, 11.1B, 11.1C, or 11.5A; (ii) has
provided the Financier the same right to cure such breach as Cogen; and (iii) in
the case of breach which is susceptible of being cured only if the Financier has
access to the Demised Premises, the "Improvements," the "Interconnection Areas,"
the "Utility Areas," and the "Access Rights of Way," in each case as defined in
the Ground Lease Agreement (and only in the case of such breach), has provided
the Financier six (6) additional months subsequent to the end of the period in
Article 11.1A for the cure of any such breach, without extension for any period
contemplated in Article 10, to cure such breach; provided that the Financier has
pursued and continues to pursue with diligence, continuity and good faith all
actions to enable the Financier to obtain access in order to cure, and to cure,
such breach; provided, further, that in respect of any such breach which is the
failure to deliver to Infineum Steam from the Cogeneration Facility in
accordance with Article 3, the Financier must also pay to Infineum, for so long
as such breach continues during such additional period, any difference between
Infineum's reasonable cost for replacement steam from any other source and the
cost Infineum would have incurred in buying Steam under Articles 3 and 4.
Infineum may in its discretion obtain such replacement steam from any source
(within or external to Infineum's
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Complex) it deems appropriate. All payments by the Financier to Infineum
pursuant to the above provision will be made, to the account specified by
Infineum in writing, monthly within ten (10) days of receipt by the Financier of
a written statement from Infineum setting forth the amount due and in reasonable
detail the basis for the amount due. The cost which Infineum would have incurred
in buying Steam under Articles 3 and 4 shall be calculated as provided in
Article 10.6X.
X. Xxxxx shall have no right to terminate this Agreement pursuant
to Article 11.2 until Cogen (i) has provided any mortgagee holding a mortgage on
all or any part of Infineum's Property substantially the same notices which
Cogen is obligated to provide Infineum pursuant to Article 11.2, and (ii) has
provided such lender or mortgagee the same right to cure as Infineum, provided
that Infineum has previously given Cogen actual notice of the appropriate
contact person and address for any such lender or mortgagee. If Cogen gives
Infineum written notice of its termination of this Agreement, Infineum shall
notify the Financier that Infineum has received such notice.
11.5 Effective Date of Termination.
A. If a breach described in Article 11.1A occurs and the time
period described in Article 11.1A has expired, Infineum may promptly give Cogen
a second written notice, which notice shall, when given, terminate this
Agreement.
B. If the event described in Article 11.1B occurs, this Agreement
shall terminate on the date described in Article 2.3A.
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49
C. If the events described in Article 11.1C occur, this Agreement
shall terminate at the end of the thirty (30) day period referred to in Article
10.5.
D. If the events described in Article 11.1D occur, this Agreement
shall terminate at the expiration of the Base Term or at the expiration of the
first five (5) year renewal term, as the case may be.
E. If a breach described in Article 11.2A or 11.2B occurs and the
applicable time period described in Article 11.2A or 11.2B has expired, Cogen
may promptly give Infineum a second written notice, which notice shall, when
given, terminate this Agreement.
F. If the events described in Article 11.2C occur, this Agreement
shall terminate upon the expiration of the twenty-four (24) month notice period
described in Article 2.3B.
G. If the events described in Article 11.2D occur, this Agreement
shall terminate upon the expiration of the twenty-four (24) month notice period
described in Article 10.6A.
H. If the events described in Article 11.2E occur, this Agreement
shall terminate upon the expiration of the six (6) month notice period described
in Article 11.2E; provided that, if Infineum does not need Steam from Cogen for
all of such six (6) month period, Infineum shall promptly advise Cogen in
writing and the Parties may accelerate the termination date of this Agreement by
mutual written consent.
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I. If the events described in Article 11.2F occur, this Agreement
shall terminate at expiration of the Base Term or at the expiration of the first
five (5) year renewal term, as the case may be.
J. If any of the events described in Article 11.3A occurs, this
Agreement shall automatically terminate when the Ground Lease terminates. If the
Ground Lease terminates for any other reason, this Agreement shall automatically
terminate pursuant to Article 11.3B when the Improvements Removal Period
commences or, if there is no Improvements Removal Period, when the Ground Lease
terminates.
K. If the event described in Article 11.3C occurs, this Agreement
shall terminate at 12:01 a.m. on January 1, 2033.
11.6 Transition.
A. If this Agreement is terminated for any reason, the Parties
shall work together to achieve a smooth transition. Unless and until this
Agreement has been terminated, neither Party shall refuse to make any of the
payments or perform any of the other obligations required under this Agreement
on the basis of any anticipated termination of this Agreement, or any actual or
alleged breach by the other Party, subject to the exception described in Article
11.6B below.
B. If Cogen terminates the Ground Lease under Sections 16.2D
(relating to termination of the Power Purchase Agreement), 16.2E (relating to
inability of Cogen to receive or maintain Governmental Authorizations), 16.2F
(relating to inability of the Demised Premises and other areas to be used for
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51
Cogen's purposes), or 16.2G (relating to partial taking) of the Ground Lease
Agreement, thus triggering subsequent automatic termination of this Agreement
under Article 11.3, it is understood that Cogen may not be able to continue to
provide Steam to Infineum under this Agreement. In such event, Cogen shall: (i)
use its best efforts to continue to supply Steam to Infineum, as would otherwise
be required by Article 3.1A, until the commencement of the Improvements Removal
Period, or (ii) if Cogen cannot supply such Steam, permit Infineum to operate
and maintain the Cogeneration Facility to supply steam to Infineum's Complex and
Infineum's Technology Center until the commencement of the Improvements Removal
Period, provided that in neither event shall Cogen be required to make capital
expenditures or to incur out-of-pocket operating and maintenance costs net of
revenues in order to keep the Cogeneration Facility operational, unless Infineum
fully and promptly reimburses Cogen for such capital expenditures and
out-of-pocket operating costs net of revenues.
ARTICLE 12
LIABILITY
12.1 Limitation on Liability for Damages.
X. Xxxxx, and its officers, directors, partners, agents,
employees, Affiliates, successors and assigns shall not be liable under this
Agreement to Infineum or its officers, directors, partners, agents, employees,
Affiliates, or their successors or assigns, for any punitive, indirect, or
consequential damages,
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52
including loss of profits, however caused; provided that this limitation shall
not apply to any damages under this Agreement caused by Cogen's intentional
provision of steam to another entity with the result that Infineum does not
receive the amounts of Steam it is entitled to under this Agreement.
B. Infineum, and its officers, directors, partners, agents,
employees, Affiliates, successors and assigns shall not be liable under this
Agreement to Cogen or its officers, directors, partners, agents, employees,
Affiliates, or their successors or assigns, for any punitive, indirect, or
consequential damages, including loss of profits, however caused; provided that
this limitation shall not apply to any damages under this Agreement caused by
Infineum's intentional purchase and acceptance of steam for industrial purposes
at Infineum's Complex or Infineum's Technology Center from an entity other than
Cogen, or caused by Infineum's provision to itself of steam for industrial
purposes when Infineum has not purchased Steam from Cogen in such amounts as
specified in Article 3.1B and Cogen is otherwise able to provide such amounts of
Steam to the Points of Delivery of Steam. The parties acknowledge that Cogen's
steam sold to Infineum for Infineum's Complex and Infineum's Technology Center
is delivered into steam delivery facilities that are owned by Bayway Refining
Company and that the facilities deliver steam to Infineum and Bayway Refining
Company. The parties also acknowledge that steam produced by Bayway Refining
Company is also delivered into the said steam delivery facilities commingling
with Steam provided by Cogen. Therefore, the parties agree that if Infineum, in
accepting Steam provided by Cogen
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53
under this Agreement, inadvertently accepts steam produced by Bayway Refining
Company, then such acceptance of steam by Infineum shall not deprive Infineum of
the limitation on liability provided by this Article 12.1B.
C. Nothing in this Article 12.1 shall prohibit or prevent Cogen
from making the allocations of Steam described in Article 3.2A, nor shall
anything in this Article 12.1 prohibit or prevent Infineum from obtaining steam
from alternate sources pursuant to and under the circumstances described in
Article 3.2B, which activities shall not be deemed breaches of this Agreement.
D. In the event this Agreement is terminated pursuant to Article
11.1B, 11.1C, 11.1D, 11.2C, 11.2D, 11.2E, 11.2F, 11.3C, or in the event this
Agreement is terminated pursuant to Article 11.3A or 11.3B because the Ground
Lease Agreement was terminated pursuant to Section 16.1D, 16.1F, 16.2C, 16.2D,
16.2E, 16.2F, 16.2G, 16.2H, 16.3A or 16.3B, both Parties shall be discharged
from all obligations under this Agreement other than those which accrued before
the effective date of such termination of this Agreement.
12.2 Damages. If either Party breaches this Agreement, the aggrieved
Party shall be entitled to seek damages as available at law except as may be
limited pursuant to Article 12.1.
12.3 Specific Performance. In addition to the right of termination
referred to in Article 11, Infineum and Cogen shall each have the right to seek
the specific performance by the other Party of any of its obligations under this
Agreement.
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ARTICLE 13
NONWAIVER
The various rights, remedies, options, and elections of Infineum and
Cogen as expressed herein are cumulative, and the failure of Infineum or Cogen
to enforce strict performance by the other Party of the provisions of this
Agreement or to exercise any right, election, or option or to resort or have
recourse to any remedy herein conferred will not be construed or deemed to be a
waiver or a relinquishment of the future enforcement by Infineum or Cogen of any
such provisions, rights, options, elections, or remedies, but the same will
continue in full force and effect.
ARTICLE 14
NOTICE AND SERVICE
14.1 Notice. All notices, requests, demands and other communications
required or permitted under the terms of this Agreement shall be sufficient in
form if in writing and shall be deemed to be duly given if delivered by personal
service, telegram, or mailed certified or registered first class mail, postage
prepaid, properly addressed to the Party entitled to receive such notice
pursuant to Article 14.3.
14.2 Date of Service.
A. Mail. If a notice is sent by registered or certified mail, it
shall be deemed given within three (3) days, excluding Saturdays, Sundays, or
legal holidays of the State of New Jersey, after deposit of the same in the
United States mail, postage prepaid, except as otherwise demonstrated by a
signed receipt.
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B. Telegram. If a notice is served by telegram, it shall be deemed
given eighteen (18) hours after delivery to the telegram company.
C. Personal Service. If a notice is served by personal service, it
shall be deemed given upon the date of actual delivery to the address of the
Party to be notified.
14.3 Addresses. Notices may be sent to the Parties at the following
addresses:
X. Xxxxx: Xxxxx Technologies Linden Venture, L.P.
c/o RCM Holdings, Inc.
33rd Floor
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
Attn.: Xx. Xxxxxx X. XxXxxx
President
with a copy to:
Cogen Technologies Linden Venture, L.P.
0000 Xxxxxxxx Xxxxx Xxxxx Xxxx
Xxxxx 00
Xxxxxxxxx, Xxx Xxxxxx 00000
Attn: Director of Operations
B. Infineum Infineum USA L.P.
0000 Xxxx Xxxxxx Xxxxxx
Xxxxxx, Xxx Xxxxxx 00000
Attn: Procurement Manager,
Services/Contracts
or to such other and different persons or addresses as may be
designated by the Parties.
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ARTICLE 15
AMENDMENTS
No amendment or modification of the terms of this Agreement shall be
binding on either Infineum or Cogen unless reduced to writing and signed by both
Parties.
ARTICLE 16
SUCCESSORS AND ASSIGNS
16.1 Assignment by Infineum. At any time Infineum may sell or transfer
all or any part of Infineum's Complex, Infineum's Technology Center or
Infineum's Property to any Affiliate of Infineum or any third party. If Infineum
sells or otherwise transfers all of Infineum's Complex to any entity, this
Agreement shall automatically be assigned to such entity and shall be binding on
and inure to the benefit of any such entity. If Infineum sells or otherwise
transfers to any entity any part of Infineum's Complex which has consumed steam
since April 8, 1993, such transferee and Cogen shall enter into the separate
agreement described in Article 16.5 for the continued provision of Steam to that
part of Infineum's Complex.
16.2 Assignment by Cogen. Cogen shall not assign, transfer, pledge, or
hypothecate this Agreement at any time, except that:
X. Xxxxx may at any time assign, pledge, or hypothecate this
Agreement, provided that, in accordance with the terms of the Ground
Lease
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57
Agreement, the Ground Lease Agreement is simultaneously assigned,
pledged, or hypothecated to the same entity by Cogen; and
B. Following two (2) years after the Date of Initial Commercial
Operation, Cogen may assign or transfer this Agreement to an unrelated
entity, provided that such unrelated entity shall also assume Cogen's
rights and obligations under the Ground Lease Agreement, and (i) first
deliver to Infineum its written assumption agreement substantially in
the form of Exhibit G-1 to be bound by all of the provisions of this
Agreement and the Ground Lease Agreement; (ii) have the personnel,
experience, equipment and other resources reasonably required to
perform its obligations under this Agreement and the Ground Lease
Agreement; (iii) be financially capable based upon reasonable standards
of performing its obligations under this Agreement and the Ground Lease
Agreement; and (iv) be in other respects reasonably acceptable to
Infineum. Subject to Article 16.7, this Agreement shall be binding on
and inure to the benefit of the successors and assigns of Cogen.
16.3 Continuing Obligations. No assignment of this Agreement by
Infineum or Cogen shall operate to relieve Infineum or Cogen of any obligations
under this Agreement which have accrued prior to the effective date of the
assignment. An obligation shall be deemed to have accrued before the effective
date of an assignment only if all the substantive elements of the obligation
have accrued by that date. An assignment of this Agreement shall relieve the
assignor of any
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58
obligations to the other Party under this Agreement which have not accrued
before the effective date of the assignment; provided, however, that the
assignor shall continue to be obligated under this Agreement if any such
assignment shall be ineffective.
16.4 [INTENTIONALLY OMITTED]
16.5 Transfers of Part of Infineum's Complex.
A. If Infineum sells or otherwise transfers to any entity any part
of Infineum's Complex which has consumed steam since January 1, 1988, such
transferee shall be obligated to enter into a separate agreement with Cogen
covering the provision of Steam to such entity. In such event, Infineum's
obligations to purchase Steam and Cogen's obligations to provide Steam under
this Agreement shall be reduced pursuant to Article 16.5B, and the formulas for
calculating the monthly steam charge and annual steam adjustment under this
Agreement shall be adjusted pursuant to Article 16.5C. The provisions of any
separate agreement shall be substantially similar to those of this Agreement,
with the transferee assuming the rights and obligations of Infineum for the
remaining term of this Agreement with respect to the transferee's part of
Infineum's Complex, except that (i) Article 2 shall reflect, as appropriate,
that some of the Base Term of the Agreement will have passed; (ii) Article 3
shall incorporate reduced rates of Steam according to Article 16.5B below; (iii)
Exhibit A, Parts 1 and 2, shall be amended according to Article 16.5C below; and
(iv) Exhibits B and C shall be amended as appropriate.
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59
B. Should Infineum sell or otherwise transfer any part of
Infineum's Complex, with the result that the transferee enters into a separate
agreement covering the provision of Steam to such entity pursuant to Article
16.5A, the rates of Steam set forth in Articles 3.1A, 3.1B, 3.1D, 3.1E and 11.2E
of such separate agreement shall be reduced on a pro rata basis by multiplying
the rate in question by a/b, where a is the total amount of Steam provided by
Cogen to the part of Infineum's Complex subject to transfer during the last
twenty-four (24) month period of continuous steam use at such part of Infineum's
Complex subsequent to April 8, 1993 (or a reasonable estimate of the same if the
data is unavailable) and b is the total amount of Steam provided by Cogen during
the same period of time to Infineum's Complex and Infineum's Technology Center.
The rates of Steam set forth in Articles 3.1A, 3.1B, 3.1D, 3.1E and 11.2E of
this Agreement shall thereafter be reduced on a pro rata basis by multiplying
the rate in question by (b-a)/b. An example of a pro rata allocation of Steam is
set forth in Exhibit E. If a is zero (i.e., the part of Infineum's Complex to be
transferred has not used steam for a continuous twenty-four (24) month period
since April 8, 1993), the transferee shall have no obligation to enter into any
separate agreement with Cogen. If part of Infineum's Complex to be transferred
has been removed from operation requiring steam prior to and at the time of
transfer and if the transferee has no intention of using steam at that part of
Infineum's Complex and will affirm the same to Cogen in writing, then neither
the transferee nor Cogen will have any obligation to enter into any separate
agreement pursuant to Article 16.5A and this Agreement shall
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60
not be modified pursuant to Article 16.5A. The rates of high pressure level and
low pressure level Steam set forth in Article 3.4 shall also be pro rated. These
pro rations shall be based on high pressure level and low pressure level Steam
use and shall be calculated using methods similar to the methods described above
as illustrated in the example set forth in Exhibit E.
C. Should Infineum sell or otherwise transfer any part of
Infineum's Complex with the result that the transferee enters into a separate
agreement covering the provision of Steam to such entity pursuant to Article
16.5A, Exhibit A, Parts 1 and 2, of such separate agreement shall be amended by
multiplying the number "27" in those places where it appears by the fraction a/b
determined under Article 16.5B and Exhibit A, Parts 3 and 4, will be deleted.
Furthermore, this Agreement will be amended by multiplying the number "27" in
Exhibit A, Parts 1 and 2, by the fraction (b-a)/b, but Exhibit A, Parts 3 and 4,
shall remain unchanged. An example of an amendment to the number "27" in Exhibit
A is set forth in Exhibit E.
16.6 [INTENTIONALLY OMITTED]
16.7 Rights of the Financier and Other Lenders.
A. Infineum has executed and delivered to the Owner Trust, as
Financier, a recognition agreement substantially in the form shown in Exhibit I.
Hereafter, if Cogen assigns, pledges, or hypothecates this Agreement to secure a
loan from another Financier to be recognized as the Financier by Infineum for
purposes of this Agreement, pursuant to Article 16.2 above, in connection
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61
therewith Infineum shall execute a consent to any such assignment, in
substantially the form shown in Exhibit H, as may be reasonably requested by the
other Financier and Infineum shall give the information specified in Article
16.8 below.
B. On instructions from the Financier, unless otherwise directed
by a court of competent jurisdiction, Infineum shall make all payments due Cogen
under this Agreement in accordance with the written instructions of the
Financier in conformity with its documentation with Cogen, and in such event
Infineum shall not be liable to Cogen for such payments.
C. If the general partner of Cogen becomes in default under its
partnership agreement with the Owner Trust, the Owner Trust may designate a new
general partner of Cogen, provided that such new general partner has the
personnel, experience, equipment and other resources reasonably required to
perform its obligations under this Agreement and the Ground Lease Agreement and
is in other respects reasonably acceptable to Infineum. Infineum agrees that
General Electric Company and General Electric Capital Corporation meet the
requirements of Article 16.7C(ii), (iii), and (iv) (and the comparable
requirements of Article 16.7F(ii)(b), (c), and (d)). Similarly, if Cogen becomes
in default under any loan documentation with the Financier or any successor or
assign of Financier holding a collateral assignment, pledge, or hypothecation of
Cogen's interest in this Agreement, the Financier or such successor or assign
may assume or cause a third party to assume Cogen's rights and obligations under
this Agreement at any time, provided that the Financier or such successor,
assign, or third party must first give
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62
Infineum reasonable written notice of such assumption, which notice shall
contain a request (which specifically references this Article 16.7C) for a list
of all defaults of Cogen under this Agreement and the Ground Lease Agreement, at
least thirty (30) days in advance and must first (i) enter into an agreement
with Infineum agreeing to assume Cogen's rights and obligations thereafter
accruing under this Agreement and the Ground Lease Agreement and to cure all
existing defaults of Cogen under this Agreement and the Ground Lease Agreement
that can be cured (including without limitation paying all amounts owed by Cogen
to Infineum, subject to the caps set forth in Exhibit G-3, if applicable)
pursuant to and as provided in an assumption agreement substantially in the form
of Exhibit G-2; provided that the Financier or any nominee or designee of the
Financier holding the interest in this Agreement for the benefit of the
Financier may enter into such an assumption agreement substantially in the form
of Exhibit G-3; (ii) have the personnel, experience, equipment, and other
resources reasonably required to perform its obligations under this Agreement
and the Ground Lease Agreement; (iii) be financially capable based upon
reasonable standards of performing its obligations under this Agreement and the
Ground Lease Agreement, and (iv) be in the other respects reasonably acceptable
to Infineum. In such event, Infineum will accept performance by such Financier,
successor, assign, or third party.
D. Following the assumption of Cogen's rights and obligations
under this Agreement by the Financier or its successor, assign, or a third party
pursuant to Article 16.7C, such Financier, successor, assign, or third party may
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63
assign its rights and obligations under this Agreement to any entity, provided
that such Financier, successor, assign, or third party must first give Infineum
reasonable written notice of such assignment at least thirty (30) days in
advance and must first meet the requirements of Article 16.7C(i), (ii), (iii),
and (iv). Any such entity may, with reasonable written notice to Infineum at
least thirty (30) days in advance, assign its rights and obligations under this
Agreement to other entities meeting the requirements of Article 16.7C(i), (ii),
(iii), and (iv). In such event, Infineum will accept performance by such entity.
E. Notwithstanding any other provision of this Agreement, after
the Financier or any successor, assign, third party or other entity referred to
in Article 16.7C or 16.7D above assumes Cogen's rights and obligations under
this Agreement, Infineum will retain all of its rights under this Agreement,
including without limitation the right to terminate this Agreement for any of
the reasons specified in Article 11. Furthermore, Cogen and the Financier (and
its successors and assigns) will give Infineum concurrent notice of any default
by Cogen and the exercise by Financier (and its successors and assigns) of any
remedy under any of the documentation between Cogen and Financier (and its
successors and assigns) pertaining to the Cogeneration Facility.
F. In the event of the rejection of this Agreement and the Ground
Lease Agreement prior to their stated expiration dates pursuant to Section 365
of the Bankruptcy Code of 1978, as amended, or any successor provision thereto,
in a case wherein Cogen is the debtor, Infineum will enter a new steam sale
agreement
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64
with the Financier or the same nominee or designee of the Financier for the
remainder of the term of this Agreement (assuming no rejection had occurred),
effective, in each case, as of the date of such rejection and upon substantially
the same covenants, agreements, terms, provisions, and limitations herein
contained and therein contained (in each case, excluding a provision equivalent
to this Article 16.7F), provided:
(i) the Financier delivers a written request to Infineum for such
new steam sale agreement within thirty (30) days from the date
of such rejection, which written request is accompanied by
payment to Infineum of all amounts due to Infineum under this
Agreement and unpaid as of the date of such request and which
request identifies the party to act as supplier under the new
steam sale agreement.
(ii) the Financier or such nominee or designee who is to act as
supplier under the new steam sale agreement must (a) cure all
existing defaults of Cogen under this Agreement that can be
cured and that would exist but for such rejection (including
without limitation paying all amounts owed by Cogen to
Infineum (b) have the personnel, experience, equipment, and
other resources reasonably required to perform its obligations
under the new steam sale agreement (c) be financially capable
based upon reasonable standards of performing its obligations
under the new steam sale agreement, and (d) be in the other
respects reasonably acceptable to Infineum;
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65
(iii) such new steam sale agreement will expressly provide that
Infineum will not be required to deliver actual possession of
the Demised Premises on the date of execution and delivery
thereof free of lessees, tenants, or other occupants;
(iv) such new steam sale agreement will expressly provide that with
respect to all representations, warranties, and covenants of
Infineum under the new steam sale agreement that refer to the
"date hereof" or "effective date of this Agreement" or words
or phrases or provisions of similar import, the same refer to
the date of this Agreement, and not the date of execution and
delivery of such new steam sale agreement and it is agreed
that Infineum will not be obligated to remove any liens placed
on the Demised Premises or any other part of Infineum's
Property subsequent to the date hereof; and
(v) the Financier or such nominee or designee enters into a new
steam sale agreement unless this Agreement has been previously
terminated in accordance with its terms other than in the
event this Agreement is rejected pursuant to Section 365 of
the Bankruptcy Code of 1978, as amended, or any successor
provision thereto, in a case wherein Cogen is the debtor.
G. So long as there exists a Financier, Infineum and Cogen shall
not, without the prior written consent of the Financier (which consent shall not
be
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66
unreasonably delayed or withheld) enter into a written amendment of this
Agreement.
16.8 Status Certificates. Either Party from time to time at the request
of the other Party shall sign promptly a written certificate confirming that
this Agreement has been duly authorized, is valid, and does not conflict with
the articles of incorporation, by-laws, or partnership agreement of the Party in
question, and stating whether the Agreement is in full force and effect; whether
it has been modified or amended, and if so, the substance of such modification
or amendment; whether there have been any uncured breaches; whether there are
any offsets, counterclaims, or defenses to be asserted by that Party against the
other under this Agreement; and such other information as may be reasonably
requested.
ARTICLE 17
CHOICE OF LAW
This Agreement shall be governed by and construed in accordance with
the laws of the State of New Jersey.
ARTICLE 18
RENEGOTIATION
Should any term or provision of this Agreement be found invalid by any
court or regulatory body having jurisdiction thereover, the Parties shall
immediately
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67
renegotiate in good faith such term or provision of the Agreement to eliminate
such invalidity, consistent with the intent of this Agreement.
ARTICLE 19
CONSENT NOT TO BE UNREASONABLY WITHHELD
Whenever either Party requests any consent, permission, or approval
which may be required or desired by that Party pursuant to the provisions of
this Agreement, the other Party shall not unreasonably withhold or postpone the
grant of such consent, permission, or approval.
ARTICLE 20
OTHER AGREEMENTS
This Agreement supersedes all prior oral and written agreements and
understandings of the Parties relating to the subject matters hereof. This
Agreement constitutes the entire agreement and understanding of the Parties
relating to the subject matter hereof. Infineum acknowledges that it has no
rights as Lessor under the Ground Lease Agreement as assigned to Bayway Refining
Company and that for purposes of construing the rights and obligations of the
Parties under this Agreement, Infineum may not allege any default of Cogen under
this Agreement arising from or in connection with the exercise or non-exercise,
or the performance or the non-performance, by Cogen of its rights or obligations
under the Ground Lease Agreement. Nothing in this Agreement shall diminish: (i)
the
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68
rights of Cogen that are exercisable in connection with the Ground Lease
Agreement, and (ii) the validity of any provisions of this Agreement that are
effective without further action of either Party, including the automatic
termination of this Agreement upon termination of the Ground Lease Agreement as
provided in Article 11.3; provided, however, that for purposes of this
Agreement, the Ground Lease Agreement shall not be deemed terminated if the
primary reason for any such termination is to enable Cogen to avoid its
obligations under this Agreement, or if the reason for the termination is the
purchase by Cogen, or any other entity, of all or a portion of the land that is
the subject of the Ground Lease.
ARTICLE 21
CAPTIONS
All indices, titles, subject headings, section titles, and similar
items are provided for the purpose of reference and convenience and are not
intended to be inclusive, definitive, or to control the meaning, content, or
scope of this Agreement.
ARTICLE 22
COUNTERPARTS
This Agreement may be executed in any number of counter parts, and each
executed counterpart shall have the same force and effect as an original
instrument.
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IN WITNESS WHEREOF, the Parties hereto have caused this Agreement, as
amended and restated in its entirety, to be signed by their respective officers
thereunto duly authorized as of the day and year first set forth above.
ATTEST: COGEN TECHNOLOGIES LINDEN VENTURE, L.P.
(d/b/a COGEN TECHNOLOGIES LINDEN VENTURE,
LIMITED PARTNERSHIP)
By: COGEN TECHNOLOGIES LINDEN, LTD.
(d/b/a COGEN TECHNOLOGIES LINDEN,
LIMITED PARTNERSHIP), ITS SOLE
GENERAL PARTNER
By:
RCM HOLDINGS, INC.
ITS SOLE GENERAL PARTNER
By: /s/ XXXX X. AIN
----------------------------------------
Name: Xxxx X. Ain
----------------------------------
Title: Senior Vice President
---------------------------------
ATTEST: INFINEUM USA L.P.
By: /s/ XXXXX X. XXXXXXX
----------------------------------------
Name: Xxxxx X. Xxxxxxx
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Title: President
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EXHIBIT A
PART 1 - CALCULATION OF MONTHLY STEAM CHARGE
Definitions
F = Cogen's actual cost of fuel for the month, $/MBtu. (Note 1)
CPI(b) = Base Consumer Price Index for all Urban Consumers for the
New York-Northern New Jersey Area as computed by the United
States Department of Labor, Bureau of Labor Statistics
("CPI"), for the month in which the Date of Initial
Commercial Operation occurs.
CPI(c) = Current (latest available monthly) CPI (or if such index
shall no longer be published, such other index as the
Parties shall reasonably determine to be most nearly
comparable to such index for the Metropolitan New York
Area).
H = Hours in the month, Hr.
PS(1) = Price of first increment of steam, $/K lb.
PS(2) = Price of remaining steam, $/K lb.
DLP = Low-pressure (140 psig) steam discount, $/K lb.
S = Total monthly steam take, K lb.
S(1) = Total monthly steam take at price PS(1), K lb.
S(2) = Total monthly steam take at price PS(2), K lb.
SLP = Total monthly take of low-pressure (140 psig) steam, K lb.
MS = Monthly steam charge, $.
Formulas
PS(1) = 0.88F + 0.45 (CPI(c)/CPI(b)) (1)
PS(2) = 0.95F + 0.45 (CPI(c)/CPI(b)) (2)
DLP = 0.22F - 0.13 (3)
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S(1) = S or (27 x H), whichever is less (4)
S(2) = S - S(1) (5)
MS = (S(1) x PS(1)) + (S(2) x PS(2)) - (SLP x DLP) (6)
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PART 2 - CALCULATION OF ANNUAL STEAM ADJUSTMENT
Definitions
F = Cogen's actual cost of fuel for the month, $/MBtu. (Note 1)
H = Hours in the month, Hr.
S = Total monthly steam take, K lb.
[DELTA]S = Difference between total monthly steam take (S) and
allowable steam take at first increment pricing
(27 K lb./Hr. x H), K lb.
[sum][DELTA]S(p) = Sum of all positive [DELTA]S's for entire Annual Period, K
lb.
[sum][DELTA]S(n) = Absolute value of the sum of all negative [DELTA]S's for
entire Annual Period, K lb.
SAQ = Quantity of steam eligible for Annual Period adjustment, K
lb.
FAVG = Average of all monthly fuel costs (F) for the entire Annual
Period, $/MBtu.
ASA = Annual Period steam adjustment, $.
Formulas
[DELTA]S = S - (27 x H) for each month in Annual Period (1)
SAQ = [sum][DELTA]S(n), if [sum][DELTA]S(p) greater than
or equal to [sum][DELTA]S(n) (2A)
SAQ = [sum][DELTA]S(p), if [sum][DELTA]S(p) less than
[sum][DELTA]S(n) (2B)
ASA = 0.07 x FAVG x SAQ (3)
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PART 3 - CALCULATION OF MONTHLY INITIAL STEAM COMMITMENT CREDIT
Definitions
F = Cogen's actual cost of fuel for the month, $/MBtu. (Note 1)
CPI(b) = Base Consumer Price Index for all Urban Consumers for the
New York-Northern New Jersey Area as computed by the United
States Department of Labor, Bureau of Labor Statistics
("CPI"), for the month in which the Date of Initial
Commercial Operation occurs.
CPI(c) = Current (latest available monthly) CPI (or if such index
shall no longer be published, such other index as the
Parties shall reasonably determine to be most nearly
comparable to such index for the Metropolitan New York
Area).
H = Hours in the month, Hr.
S = Total monthly steam take, K lb.
HTS = Public Service Electric and Gas Company (or its successor)
subtransmission high-tension service rate (or equivalent)
for prior month, including capacity, energy, and energy
adjustment, $/MW-Hr.
FP = Cogen's actual cost of fuel for the prior month, $/MBtu.
(Note 1) For the first month FP shall be the Weighted
Average Cost of Gas for the prior month ($/MBtu).
PCT = Fraction of monthly initial steam commitment credit
allowed.
MC = Monthly initial steam commitment credit, $.
Formulas
PCT = [S/(100 x H)] or 1.0, whichever is less (1)
MC = 19 x PCT x H x [HTS - [9.43FP + 7.11 +
1.43 (CPI(c)/CPI(b))]], or 0.0, whichever is greater (2)
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PART 4
CALCULATION OF ANNUAL INITIAL STEAM COMMITMENT CREDIT ADJUSTMENT
Definitions
F = Cogen's actual cost of fuel for the month, $/MBtu. (Note 1)
H = Hours in the month, Hr.
S = Total monthly steam take, K lb.
[DELTA]S = Difference between total monthly steam take (S) and
required steam take for full initial steam commitment
credit (100 K lb./Hr. x H), K lb.
[sum][DELTA]S'(p) = Sum of all positive [DELTA]S"s for entire Annual Period, K
lb.
[sum][DELTA]S'(n) = Absolute value of the sum of all negative [DELTA]S"s for
entire Annual Period, K lb.
IAQ = Quantity of steam eligible for Annual Period initial steam
commitment credit adjustment, K lb.
FAVG = Average of all monthly fuel costs (F) for the entire Annual
Period, $/MBtu.
HTS = Public Service Electric and Gas Company (or its successor)
subtransmission service rate (or equivalent) for prior
month, including capacity, energy, and energy adjustment,
$/MW-Hr.
HTSAVG = Average of monthly subtransmission high-tension service
rates (HTS) for the entire Annual Period, $/MW-Hr.
CPI(b) = Base Consumer Price Index for all Urban Consumers for the
New York-Northern New Jersey Area as computed by the United
States Department of Labor, Bureau of Labor Statistics
("CPI"), for the month in which the Date of Initial
Commercial Operation occurs.
CPI(c) = Current (latest available monthly) CPI (or if such index
shall no longer be published, such other index as the
Parties shall reasonably determine to be most nearly
comparable to such index for the Metropolitan New York
Area).
CPIAVG = Average of monthly CPIc's for entire Annual Period.
ACA = Annual Period initial steam commitment credit adjustment,
$.
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Formulas
[DELTA]S' = S - (100 x H) for each month in Annual Period (1)
IAQ = [sum][DELTA]S(n)', if [sum][DELTA]S(p)'
greater than or equal to [sum][DELTA]S(n)' (2a)
IAQ = [sum][DELTA]S(p)', if [sum][DELTA]S(p)'
less than [sum][DELTA]S(n)' (2b)
ACA = 19 x (IAQ/100) x [HTSAVG - [9.43 FAVG + 7.11 +
1.43 (CPIAVG/CPI(b))]], or 0.0, whichever is greater (3)
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NOTES TO EXHIBIT A
1) Fuel cost will be Cogen's actual cost for fuel (as supported by
invoices) equal to the sum of all costs incurred in such month by Cogen
with respect to fuel acquired for use in the Cogeneration Facility
(including fuel commodity, transportation, and storage costs and any
costs related thereto), but such fuel cost shall not be greater than
105 percent of the Weighted Average Cost of Gas.
2) It is possible under some circumstances for the monthly initial steam
commitment credit (MC) to exceed the monthly steam charge (MS). When
this occurs, the amount which MC exceeds MS shall be accrued during
each Annual Period in a commitment credit accrual account. Each month
during the course of each Annual Period, Infineum shall be entitled to
receive a refund from the commitment credit accrual account to the
extent Cogen's total Annual Period revenues from Infineum are not
reduced below zero and there is a positive balance in the account. The
account shall be reset to zero at the end of each Annual Period.
3) The sum of the annual steam adjustment (ASA) and annual initial steam
commitment credit (ACA) shall not exceed Cogen's total Annual Period
revenues from Infineum after the application of Note 2 above.
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EXHIBIT B
DESCRIPTION OF POINTS OF DELIVERY OF STEAM
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EXHIBIT C
PRO FORMA MONTHLY INVOICE
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EXHIBIT D
[INTENTIONALLY OMITTED]
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EXHIBIT E
EXAMPLE OF PRO RATA ALLOCATION OF STEAM
Assume Infineum sells any portion of Infineum's Complex and twenty-four (24)
months prior to the date of such sale the average Steam supply provided by Cogen
was as follows:
High Pressure Low Pressure
Total K lbs./yr Level K lbs./yr Level K lbs./yr
--------------- --------------- ---------------
Portion of Complex
retained by Infineum 608,400 36,360 572,040
Portion of Complex
sold 180,000 60,000 120,000
------- ------ -------
Total 788,400 96,360 692,040
o Pro Rata allocation of steam rights and obligations to new owner of
portion of Infineum's Complex:
Portion Sold to New Owner = 180,000 = .228
------------------------- -------
Total 788,400
o Pro Rata allocation of Infineum's continuing rights and obligations
under Agreement:
Portion Retained by Infineum = 608,400 = .772
---------------------------- -------
Total 788,400
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o Pro Rata allocation of high pressure level steam rights and obligations
to new owner:
Portion Sold to New Owner = 60,000 = .623
------------------------- -------
Total 96,360
o Pro Rata allocation of Infineum's continuing rights and obligations to
high pressure level steam under Agreement:
Portion Retained by Infineum = 36,360 = .377
---------------------------- -------
Total 96,360
o Pro Rata allocation of low pressure level steam rights and obligations
to new owner:
Portion Sold to New Owner = 120,000 = .173
------------------------- -------
Total 692,040
o Pro Rata allocation of Infineum's continuing rights and obligations to
low pressure level steam under Agreement:
Portion Retained by Infineum = 572,040 = .827
---------------------------- -------
Total 692,040
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o Pro Rata allocation results:
Allocation Allocation
Total To New Owner To Infineum
----- ------------ -------------
Article 3.1A
Max Supply
Oct. - May 181 K lbs./hr 36 K lbs./hr 145 K lbs./hr
Max Supply
June - Sept. 109 K lbs./hr 21 K lbs./hr 88 K lbs./hr
Max Upset/Emerg.
Supply
June - Sept. 181 K lbs./hr 36 K lbs./hr 145 K lbs./hr
Article 3.1B
Annual External
Steam Reqmts. 158,556 K lbs. 106,000 K lbs. 52,556 K lbs
Article 3.1D
Max Rate
Oct. - May 127 K lbs./hr 25 K lbs./hr 102 K lbs./hr
Max Rate
June - Sept. 72 K lbs./hr 14 K lbs./hr 58 K lbs./hr
Article 3.1E
External Steam
Reqmts. for 6
month period 79,278 K lbs. 15,504 K lbs. 63,774 K lbs
Reduced Steam
Obligation 145 K lbs./hr 29 K lbs./hr 116 K lbs./hr
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Max Sale to
other Customers 36 K lbs./hr 7 K lbs./hr 29 K lbs./hr
Article 3.4
High Pressure
Level Steam 19 K lbs./hr 12 K lbs./hr 7 K lbs./hr
Low Pressure
Level Steam 226 K lbs./hr 33 K lbs./hr 193 K lbs./hr
Article 11.2E
Annual Steam Reqs. 57,080 K lbs 11,217 K lbs 45,863 K lbs
Exhibit A
Number "27" 27 5 22
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EXHIBIT F
[INTENTIONALLY OMITTED]
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EXHIBIT G-1
ASSUMPTION AGREEMENT
[Date]
_______________, a _____________ corporation (the "Assignee"), hereby
declares, covenants, agrees and binds itself as follows:
(1) Except as otherwise set forth herein, capitalized terms
used herein are used with the meanings given to them in the Ground
Lease Agreement, dated as of August 1, 1990, between, Exxon
Corporation, a New Jersey corporation, and Cogen Technologies Linden
Venture, L.P., doing business in New Jersey as Cogen Technologies
Linden Venture, Limited Partnership, a Delaware limited partnership, as
amended to the date hereof and assigned by Exxon Corporation to Bayway
Refining Company, a Delaware Corporation by an assignment agreement
dated as of April 8, 1993 and effective as of April 8, 1993 (the
"Ground Lease Agreement").
(2) The Assignee hereby (a) assumes and agrees to pay and
perform each and every duty and obligation of Cogen hereafter accruing
under the Ground Lease Agreement and the Steam Sale Agreement between
Cogen and Infineum USA L.P. ("Infineum") as assignee of Exxon
Corporation dated April 8, 1993 (the "Steam Sale Agreement"), (b)
agrees from and after the date hereof to comply with and be bound by
the terms and provisions of the Ground Lease Agreement and the Steam
Sale Agreement applicable to Cogen, (c) confirms that from and after
the date hereof it shall be deemed "Cogen" for the purposes of the
Ground Lease Agreement and the Steam Sale Agreement, and (d) agrees to
cure as soon as reasonably practicable (which, in the case of payments
due by Cogen to Infineum, shall be deemed to require immediate payment
by the Assignee) all defaults of Cogen under the Ground Lease Agreement
and the Steam Sale Agreement.
(3) The Assignee hereby represents that:
(a) it is a corporation duly organized existing in good
standing under the laws of the State of __________; and
(b) it possesses all requisite power and authority to
enter into and perform this Agreement, the Ground Lease Agreement and
the Steam Sale Agreement and to carry out the transactions contemplated
herein and therein.
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(4) All notices and other communications hereunder shall be in
writing (including telecopier, telegraphic, telex or cable
communication) and mailed, telecopied, telegraphed, telexed, cabled or
delivered if to, Infineum, at its address at Infineum USA L.P.,1900
Xxxx Xxxxxx Xxxxxx, Xxxxxx, Xxx Xxxxxx 00000, Attn: Procurement
Manager, Services/Contracts, Telecopy No.: 0-000-000-0000; and if to
the Assignee, at its address at ____________________, Attention:
_______________, Telecopy No.: _____________; or, as to each such
person, at such other address as shall be designated by such person in
a written notice to such other person. All such notices and
communications shall be effective within five days (excluding
Saturdays, Sundays or legal holidays in the State of New Jersey) of
mailing, when mailed to the address specified above, postage prepaid,
and upon receipt of an answer back or confirmation, when sent by
telecopy, telegraph, telex or cable.
(5) This Agreement shall be binding upon the Assignee, its
successors and assigns.
(6) This Agreement shall be governed by and construed in
accordance with the laws of the State of New Jersey.
IN WITNESS WHEREOF, the Assignee has caused this Agreement to
be executed as of date first above written.
[NAME OF ASSIGNEE]
By
--------------------------------------
Title:
Consented and Agreed by:
Infineum USA L.P.
By
----------------------------------
Title:
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EXHIBIT G-2
ASSUMPTION AGREEMENT
[Date]
_________________, a _________________ corporation (the
"Assignee"), hereby declares, covenants, agrees and binds itself as follows:
(1) Except as otherwise set forth herein, capitalized terms
used herein are used with the meanings given them in the Ground Lease
Agreement, dated as of August 1, 1990, between Exxon Corporation, a New
Jersey corporation, and Cogen Technologies Linden Venture, L.P., doing
business in New Jersey as Cogen Technologies Linden Venture, Limited
Partnership, a Delaware limited partnership, as amended to the date
hereof and assigned by Exxon Corporation to Bayway Refining Company, a
Delaware corporation ("Infineum") by an assignment agreement dated as
of April 8, 1993 and effective as of April 8, 1993 (the "Ground Lease
Agreement").
(2) The Assignee hereby (a) assumes and agrees to pay and
perform each and every duty and obligation of Cogen hereafter accruing
under the Ground Lease Agreement and the Steam Sale Agreement between
Cogen and INFINEUM U.S.A L.P. ("Infineum") as assignee of Exxon
Corporation dated April 8, 1993 (the "Steam Sale Agreement"), (b)
agrees from and after the date hereof to comply with and be bound by
the terms and provisions of the Ground Lease Agreement and the Steam
Sale Agreement applicable to Cogen, (c) confirms that from and after
the date hereof it shall be deemed "Cogen" for the purposes of the
Ground Lease Agreement and the Steam Sale Agreement, and (d) agrees to
cure as soon as reasonably practicable (which, in the case of payments
due by Cogen to Infineum, shall be deemed to require immediate payment
by the Assignee) all defaults of Cogen under the Ground Lease Agreement
and the Steam Sale Agreement of which Infineum has previously given
written notice to the Financier in accordance with Section 20.4C of the
Ground Lease Agreement (including, without limitation, making all
payments due by Cogen to Infineum of which such notice has been given,
subject to Article 10 of the Ground Lease Agreement).
(3) The Assignee hereby represents that:
(a) it is a corporation duly organized existing in good
standing under the laws of the State of __________; and
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(b) it possesses all requisite power and authority to
enter into and perform this Agreement, the Ground Lease Agreement and
the Steam Sale Agreement and to carry out the transactions contemplated
herein and therein.
(4) All notices and other communications hereunder shall be in
writing (including telecopier, telegraphic, telex or cable
communication) and mailed, telecopied, telegraphed, telexed, cabled or
delivered if to, Infineum, at its address at Infineum USA L.P.,1900
Xxxx Xxxxxx Xxxxxx,Xxxxxx, Xxx Xxxxxx 00000, Attn: Procurement Manager,
Services/Contracts, Telecopy No.: 0-000-000-0000;; and if to the
Assignee, at its address at ____________________, Attention:
_______________, Telecopy No.: _____________; or, as to each such
person, at such other address as shall be designated by such person in
a written notice to such other person. All such notices and
communications shall be effective within five days (excluding
Saturdays, Sundays or legal holidays in the State of New Jersey) of
mailing, when mailed to the address specified above, postage prepaid,
and upon receipt of an answerback or confirmation, when sent by
telecopy, telegraph, telex or cable.
(5) This Agreement shall be binding upon the Assignee, its
successors and assigns.
(6) This Agreement shall be governed by and construed in
accordance with the laws of the State of New Jersey.
IN WITNESS WHEREOF, the Assignee has caused this Agreement to
be executed as of date first above written.
[NAME OF ASSIGNEE]
By
--------------------------------------
Title:
Consented and Agreed by:
Infineum USA L.P.
By
----------------------------------
Title:
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EXHIBIT G-3
ASSUMPTION AGREEMENT
[Date]
_________________, a _________________ corporation (the
"Assignee"), hereby declares, covenants, agrees and binds itself as follows:
(1) Except as otherwise set forth herein, capitalized terms
used herein are used with the meanings given them in the Ground Lease
Agreement, dated as of August 1, 1990, between Exxon Corporation, a New
Jersey corporation, and Cogen Technologies Linden Venture, L.P., doing
business in New Jersey as Cogen Technologies Linden Venture, Limited
Partnership, a Delaware limited partnership, as amended to the date
hereof and assigned by Exxon Corporation to Bayway Refining Company, a
Delaware Corporation by an assignment agreement dated as of April 8,
1993 and effective as of April 8, 1993 (the "Ground Lease Agreement").
(2) The Assignee hereby (a) assumes and agrees to pay and
perform each and every duty and obligation of Cogen hereafter accruing
under the Ground Lease Agreement and the Steam Sale Agreement between
Cogen and INFINEUM U.S.A. L.P. ("Infineum") as assignee of Exxon
Corporation dated April 8, 1993 (the "Steam Sale Agreement"), (b)
agrees from and after the date hereof to comply with and be bound by
the terms and provisions of the Ground Lease Agreement and the Steam
Sale Agreement applicable to Cogen, (c) confirms that from and after
the date hereof it shall be deemed "Cogen" for the purposes of the
Ground Lease Agreement and the Steam Sale Agreement; provided that:
(i) the Assignee shall have the right to deliver a notice
of termination of the Ground Lease Agreement and the Steam
Sale Agreement to Infineum on or before the 90th day after the
date hereof and, in the event such a notice is timely received
by Infineum, the Ground Lease Agreement and the Steam Sale
Agreement shall terminate on the 30th day after such notice is
received by Infineum; provided, however, that the obligations
of the Assignee in the Ground Lease Agreement and the Steam
Sale Agreement in respect of any action, inaction, event or
circumstance occurring prior to the date of termination of
such agreements shall survive such termination (subject to
Article 10 of the Ground Lease Agreement and Section (2)(iii)
hereof);
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(ii) by executing this Agreement, the Assignee agrees to
cure as soon as reasonably practicable (which, in the case of
payments due by Cogen to Infineum, shall be deemed to require
immediate payment by Assignee) all defaults of Cogen under the
Ground Lease Agreement and the Steam Sale Agreement of which
Infineum has previously given written notice to the Financier
in accordance with Section 20.4C of the Ground Lease Agreement
(including, without limitation, making all payments due by
Cogen to Infineum of which such notice has been given, subject
to Article 10 of the Ground Lease Agreement and Section
(2)(iii) hereof);
(iii) if the Assignee shall exercise the right to
terminate the Ground Lease Agreement and the Steam Sale
Agreement pursuant to Section (2)(i) hereof, the aggregate
liability of the Assignee to Infineum in respect of its
obligations hereunder and under the Ground Lease Agreement and
the Steam Sale Agreement, whether arising pursuant to the
provisions of such agreements or by operation of law, as to
all matters provided for in such agreements, together with the
aggregate of all amounts paid pursuant to all letters of
credit issued as contemplated in Section 10.8 of the Ground
Lease Agreement, shall not in any event exceed $10,000,000 in
respect of any action, inaction, event or circumstance
occurring prior to the date of termination of the Ground Lease
Agreement and the Steam Sale Agreement; and
(iv) it is expressly acknowledged and agreed that Infineum
shall retain all of its rights under the Ground Lease
Agreement and the Steam Sale Agreement, including without
limitation, the right to terminate either such agreement as
provided by the terms thereof, including, without limitation,
the right to terminate either such agreement in respect of an
uncured payment default thereunder even if the Assignee has
paid to Infineum an aggregate of $10,000,000 or more.
(3) The Assignee hereby represents that:
(a) it is a corporation duly organized existing in good
standing under the laws of the State of __________; and
(b) it possesses all requisite power and authority to
enter into and perform this Agreement, the Ground Lease Agreement and
the Steam Sale Agreement and to carry out the transactions contemplated
herein and therein.
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(4) All notices and other communications provided for herein
shall be in writing (including telecopier, telegraphic, telex or cable
communication) and mailed, telecopied, telegraphed, telexed, cabled or
delivered if to, Infineum, at its address Infineum USA L.P.,1900 Xxxx
Xxxxxx Xxxxxx,Xxxxxx, Xxx Xxxxxx 00000, Attn: Procurement Manager,
Services/Contracts, Telecopy No.: 0-000-000-0000;; and if to the
Assignee, at its address at ____________________, Attention:
_______________, Telecopy No.: _____________; or, as to each such
person, at such other address as shall be designated by such person in
a written notice to such other person. All such notices and
communications shall be effective within five days (excluding
Saturdays, Sundays or legal holidays in the State of New Jersey) of
mailing, when mailed to the address specified above, postage prepaid,
and upon receipt of an answerback or confirmation, when sent by
telecopy, telegraph, telex or cable.
(5) This Agreement shall be binding upon the Assignee, its
successors and assigns.
(6) This Agreement shall be governed by and construed in
accordance with the laws of the State of New Jersey.
IN WITNESS WHEREOF, the Assignee has caused this Agreement to
be executed as of date first above written.
[NAME OF ASSIGNEE]
By
--------------------------------------
Title:
Consented and Agreed by:
Infineum USA L.P.
By
----------------------------------
Title:
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EXHIBIT H
CONSENT TO ASSIGNMENT
CONSENT TO ASSIGNMENT, dated as of __________, ____, by Infineum USA
L.P., a ________________ limited partnership ("Infineum"), in favor of
__________________ (the "Lender"), under that certain_________________________,
dated as of ________ __, ____ (the "Loan Agreement"), among Cogen Technologies
Linden Venture, L.P., doing business in New Jersey as Cogen Technologies Linden
Venture, Limited Partnership, a Delaware limited partnership ("Cogen"), and the
Lender.
WHEREAS, Infineum has been informed that pursuant to the Loan
Agreement, the Lender has agreed to make certain loans to Cogen to refinance the
loans made to Cogen for the construction of the Cogeneration Facility (as
hereinafter defined); and
WHEREAS, the term "Financier" in the Steam Sale Agreement (as
hereinafter defined) includes any person providing funds for the refinancing or
taking out of any loans made to Cogen for the construction of the Cogeneration
Facility and the nominees or designees of any such persons; and
WHEREAS, Infineum has been informed that Cogen has assigned to the
Lender Cogen's rights, title and interest in the Steam Sale Agreement as
collateral security for, among other things, Cogen's obligations under the Loan
Agreement;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt of which is acknowledged, the parties hereto
agree as follows:
ARTICLE I
DEFINITIONS
1.01. Defined Terms. Unless the context shall otherwise require and
except as otherwise specified herein, capitalized terms used herein shall have
the meanings assigned to them in the Agreement, dated as of January 1, 1999,
between Cogen and Infineum for the sale of steam (the "Steam Sale Agreement")
attached as Schedule A hereto.
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ARTICLE II
CONSENT TO ASSIGNMENT
2.01. Consents. Infineum hereby consents to (A) the assignment by Cogen
to the Lender of Cogen's right, title and interest in the Steam Sale Agreement,
which is attached hereto as Schedule A and made a part hereof (the right, title
and interest of Cogen in the Steam Sale Agreement being hereinafter referred to
as the "Assigned Rights") as collateral security, and (B) agrees that the Lender
is the Financier recognized by Infineum for purposes of the Steam Sale Agreement
and as such, shall have all of the rights of a Financier under the Steam Sale
Agreement until such time as Infineum is notified pursuant to the Steam Sale
Agreement that the Lender is no longer to be the Financier recognized by
Infineum thereunder.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.01. Assurance. Infineum agrees and confirms to the Lender, as
security assignee of the Assigned Rights, that on the date hereof, the Steam
Sale Agreement has not been terminated or modified in contravention of Section
16.7G thereof.
3.02. Representations and Warranties. Infineum repeats and reaffirms
for the benefit of the Lender as security assignee of the Assigned Rights the
representations and warranties made in Section 9.1 of the Steam Sale Agreement.
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ARTICLE IV
MISCELLANEOUS
4.01. Severability. If any provision of this Consent to Assignment
shall be held to be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
4.02. Governing Law. This Consent to Assignment shall be governed by
and construed in accordance with the laws of the State of New Jersey.
4.03. Headings. The headings hereof are for convenience only and are
not intended to affect the meaning of interpretation of this Consent to
Assignment.
4.04. Successors and Assigns. This Consent to Assignment shall be
binding upon, inure to the benefit of, and be enforceable by, Infineum and the
Lender and their respective successors and assigns.
IN WITNESS WHEREOF, the undersigned has caused this Consent to
Assignment to be duly executed by its officer thereunto duly authorized as of
the day and year first above written.
Infineum USA L.P.
By:
-------------------------------------
Title:
----------------------------------
Address: 0000 Xxxx Xxxxxx Xxxxxx
Xxxxxx, Xxx Xxxxxx 00000
Attn: Procurement Manager,
Services/Contracts
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EXHIBIT I
RECOGNITION AGREEMENT
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