EXHIBIT 10.J
THIRD AMENDMENT TO POWER PURCHASE AGREEMENT
THIS THIRD AMENDMENT TO POWER PURCHASE AGREEMENT (the "Third
Amendment"), made and entered into as of the 1st day of August, 1999, by and
between Cogen-Technologies Linden Venture, L.P. ("Seller") and Consolidated
Edison Company of New York, Inc. ("Buyer" and collectively with Seller, the
"Parties"), constitutes an amendment to the Power Purchase Agreement, dated
April 14, 1989, between Buyer and Cogen Technologies, Inc., as assigned to
Seller by Cogen Technologies Linden Ltd., assignee of Cogen Technologies, Inc.,
and as amended by the First Amendment to Power Purchase Agreement between Buyer
and Seller, dated September 17, 1990 (the "First Amendment") and the Second
Amendment to the Power Purchase Agreement between Buyer and Seller, dated
December 22, 1993 (the "Second Amendment") (the Power Purchase Agreement, the
First Amendment and the Second Amendment are referred to herein together as the
"Agreement").
W I T N E S S E T H:
WHEREAS, Buyer and Seller previously entered into the
Agreement for the purchase by Buyer of certain capacity and energy to be
produced by a gas-fired cogeneration plant and appurtenant facilities to be
constructed in Linden, New Jersey (the "Plant");
WHEREAS, certain matters not specifically addressed in the
Agreement have arisen which Buyer and Seller desire to address in the form of an
amendment to the Agreement;
WHEREAS, the Agreement neither expressly permits nor expressly
prohibits the sale by Seller of Plant capacity in excess of 645 megawatts ("MW")
to Third Parties; and
WHEREAS, Buyer and Seller desire to amend the Agreement with
respect to the right of the Seller to sell Plant capacity and associated energy
in excess of 645 MW to Third Parties:
NOW, THEREFORE, in consideration of the mutual covenants
contained herein and other valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the Parties, intending legally to be bound,
agree to amend the Agreement as follows:
FIRST. By inserting after Article 4.8 a new Article 4.9, as
follows:
"4.9 Rights to Excess Capacity and Energy.
(A) Definitions. For purposes of this Article 4.9:
(1) The term "DMNC" means the DMNC determined pursuant to
Article 13.1 (A) (1) and 13.1(D), notwithstanding anything to
the contrary in Article 13.1(A) (4).
(2 The term "Excess Capacity" means any Plant power production
capacity in excess of a DMNC of 645 MW.
(3 The term "Excess Energy" means energy associated with
Excess Capacity.
(4 The term "Excess Energy Fuel Component" means, for any
month, an amount equal to the product of:
(a) the average cost incurred in such month by Seller with
respect to Fuel acquired for use in the Plant, expressed in
$/Btu (at the higher heating value),
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(b) an assumed heat rate of 11,500 Btu/kWh (at the higher
heating value), and
(c) the sum of the number of kWh of energy sold in each
hour in such month associated with the first 20 MW of
Excess Capacity.
(5 The term "Excess Energy O & M Component" means, for any
month, an amount equal to the product of:
(a) 1.0 cents per kWh and
(b) the sum of the number of kWh of energy sold in each
hour in such month associated with the first 20 MW of
Excess Capacity.
(6 The term "Net Capacity Revenue" means, for any month, the
revenue received by Seller from the sale of the first 20 MW of
Excess Capacity, but, if Seller sells more than 20 MW of
Excess Capacity in any Month, no less than the product of (i)
20 and (ii) the weighted average price per MW for all sales of
Excess Capacity in such month less the sum of:
(a) any taxes associated with making such sale, and
(b) any other reasonable and customary costs and expenses
paid to Third Parties or to Buyer relating to such sale.
(7 The term "Net Energy Revenue" means, for any month, the
revenue received by Seller from the sale of energy associated
with the first 20 MW of Excess Capacity, but, if Seller sells
energy in
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excess of an amount associated with the first 20 MW of Excess
Capacity in any Month, no less than the product of (i the sum
of the number of kWh of energy sold in each hour in such month
associated with the first 20 MW of Excess Capacity and (ii the
weighted average price per kWh for all sales of Excess Energy
in each hour of such Month less the sum of:
(a) the Excess Energy Fuel Component,
(b) the Excess Energy O & M Component,
(c) any taxes associated with making such sale,
(d) any transmission and distribution costs and expenses
relating to such sale, and
(e) any other reasonable and customary costs and expenses
paid to Third Parties or to Buyer relating to such sale.
(8 The term "Third Party" means any person other than Buyer
and Seller.
(B) Notwithstanding anything to the contrary contained in this
Agreement, but without affecting the parties' rights under
Section 11.2 (E), Seller shall have the right to sell and
deliver any Excess Capacity or Excess Energy or both to any
Third Parties or to Buyer under a separate agreement, except
that
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(1) to the extent that Buyer has scheduled has scheduled Plant
output at levels at or less than 645 MW, Seller shall first
provide energy to Buyer at the levels requested by Buyer at
time,
(2) Seller may utilize the Plant to produce energy above the
level requested by Buyer for sales to Third Parties or to
Buyer under a separate agreement only in an amount equivalent
to that associated with the amount of the Excess Capacity,
(3) to the extent that ambient temperatures in any hour in
such month are above the average ambient temperature which the
DMNC of the Plant available for delivery is adjusted pursuant
to Section 13.1(A) (1) of this Agreement and to the extent to
which such higher temperature limits the amount of energy that
can be produced by the Plant, then both Buyer's and Seller's
rights to energy from the Plant will be adjusted accordingly
and, in such case,
(a) Buyer shall be entitled in such hour of such month to a
portion of the energy produced by the Plant during such
hour equal to all the energy produced by the Plant during
such hour multiplied by a fraction, the numerator of which
is the DMNC less the Excess Capacity, and the denominator
of which is the DMNC, and
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(b) Seller shall be entitled to the remainder of the energy
produced by the Plant during such hour, which remainder
shall not exceed an amount of energy equivalent to the
energy associated with the amount of Excess Capacity, and
4) Seller's right to sell Excess Capacity shall not impair
Buyer's capacity entitlement under this Agreement except as
specifically provided herein.
(C) In any month, the Net Capacity Revenue shall be shared
equally between Buyer and Seller.
(D) In any month, Net Energy Revenue shall be shared equally
between Buyer and Seller.
(E) Notwithstanding anything to the contrary contained in this
Agreement except as specifically provided in this Article 4.9,
Buyer shall have no right or claim to any Excess Capacity or
Excess Energy or to any revenue from the sale of Excess
Capacity and Excess Energy. Nothing herein shall obligate
Seller to make any sale of Excess Capacity or Excess Energy
and Seller shall have no liability to Buyer should it not make
any such sales.
For purposes of Section 4.1(B), 4.1(C) and 4.3 of this
Agreement; any Excess Energy sold shall not be included in
"the total kWh actually delivered by the Plant" or "the Kwh
actually delivered to
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Buyer" or "the kWh actually delivered by Seller or Buyer" or
"the kWh delivered during such month" and
(2) Fuel costs and any other costs related thereto incurred by
Seller for the production of Excess Energy shall be deducted
from the "sum of all costs incurred" in computing the Fuel
Component. For purposes of this Section 4.9 (F) (2) Fuel costs
incurred by Seller for the production of Excess Energy in any
month shall amount to the product of (a) the average cost
incurred in such month by Seller with respect to Fuel acquired
for use in the Plant, expressed in $/Btu (at the higher
heating value), (b) an assumed heat rate of 11,500 Btu/kWh (at
the higher heating value) and (c) the sum of the number of kWh
of Excess Energy sold in each hour in such month.
SECOND. This Third Amendment shall become effective as of
August 1, 1999.
THIRD. All corporate action required for Buyer and Seller
to execute, deliver, and perform their respective
obligations hereby have been completed, and no approval by
the Public Service Commission of the State of New York is
required for Buyer to execute, deliver, and perform its
obligations under this Third Amendment and the Agreement as
amended hereby.
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FOURTH This Third Amendment and the rights and obligations
of the Parties hereunder shall be governed by, and
construed and interpreted in accordance with, the laws of
the State of New York.
IN WITNESS WHEREOF, the Parties have caused this Third Amendment to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
COGEN TECHNOLOGIES LINDEN VENTURE, L.P.
By: /s/ Xxxxxx X. Xxxxxx
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Printed Name: Xxxxxx X. Xxxxxx
Title: President
Date: April 25, 2000
CONSOLIDATED EDISON COMPANY OF NEW YORK, INC.
By: /s/ Xxxxxxx Xxxxx
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Printed Name: Xxxxxxx Xxxxx
Title: Acting Vice President
Date: October 21, 1999
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