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EXHIBIT 10.103
SHARED FACILITIES AND COORDINATED OPERATION
AGREEMENT AND INDEMNITY
BETWEEN
JEDI LINDEN NB, L.L.C.
AND
COGEN TECHNOLOGIES LINDEN VENTURE, L.P.
DATED AS OF JUNE 1, 2000
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TABLE OF CONTENTS
SHARED FACILITIES AND COORDINATED OPERATION AGREEMENT AND INDEMNITY
Page
ARTICLE 1. DEFINITIONS AND INTERPRETATION 2
1.1 Definitions. 2
1.2 Interpretation. 6
ARTICLE 2. TERM OF THIS AGREEMENT 7
2.1 Term. 7
2.2 Extensions of Term. 7
ARTICLE 3. REPRESENTATIONS AND WARRANTIES 7
3.1 Representations and Warranties of the Parties. 7
3.2 Additional Representation, Warranty and Covenant of Linden NB. 8
ARTICLE 4. CONSTRUCTION OF THE LINDEN 6 FACILITY 9
4.1 Sublease. 9
4.2 Access. 9
4.3 Location of Controls and Instruments. 9
4.4 Construction of the Linden 6 Facility. 9
4.5 Interconnection of Steam Headers and Delivery Point. 10
ARTICLE 5. SHARED FACILITIES AND COORDINATED OPERATION 10
5.1 Operation and Maintenance of the Linden 6 Facility. 10
5.2 Steam Agreement Amendment. 11
5.3 Qualifying Facility Status. 12
5.4 Compliance with ISRA. 12
ARTICLE 6. PRICE FOR SHARED SERVICES 13
6.1 O & M Contract Expense. 13
6.2 Price for Boiler Feed Water Delivered. 13
6.3 Price for Steam Delivered to the Existing Plant. 13
6.4 Price for Steam Delivered for Power Augmentation. 13
6.5 Price for Common Site Services. 13
ARTICLE 7. METERING 13
7.1 Measurement Location. 13
7.2 Measuring Equipment and Stations. 13
7.3 Testing. 14
7.4 Corrections. 15
7.5 Maintenance and Records. 15
ARTICLE 8. INVOICES AND PAYMENT 16
8.1 Billing. 16
8.2 Payment. 16
8.3 Adjustments. 17
ARTICLE 9. TAXES 17
ARTICLE 10. DEFAULT AND REMEDIES 17
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10.1 Default. 17
10.2 Remedies. 18
10.3 Damages. 18
10.4 Duty to Mitigate. 19
ARTICLE 11. FORCE MAJEURE 19
11.1 Force Majeure. 19
11.2 Force Majeure Defined. 19
ARTICLE 12. INDEMNIFICATION 20
12.1 Survival of Indemnifications. 20
12.2 Indemnification. 20
ARTICLE 13. DISPUTE RESOLUTION 21
13.1 Dispute Resolution. 21
13.2 Binding Arbitration. 21
13.3 Burden of Proof. 23
ARTICLE 14. ASSIGNMENT 23
14.1 General 23
14.2 Permitted Assignments 23
14.3 Further Assurances 23
14.4 Violations a Default; Further Remedies 24
ARTICLE 15. NOTICES 24
15.1 General 24
15.2 Changes 25
15.3 Holidays 25
ARTICLE 16. CONFIDENTIALITY 25
ARTICLE 17. FURTHER ASSURANCES 26
17.1 General 26
17.2 Permits and Governmental Approvals 26
17.3 Financing 26
ARTICLE 18. MISCELLANEOUS 26
18.1 Severability 26
18.2 Captions, Titles and Headings 27
18.3 Governing Law 27
18.4 Non-Waiver 27
18.5 Relationship of the Parties. 27
18.6 Parties in Interest 27
18.8 Modification 27
18.9 Entire Agreement 27
18.10 Attorneys' Fees 28
18.11 Costs and Expenses 28
18.12 Counterparts 28
18.13 Survival of Obligations 28
18.14 Insurance 28
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EXHIBITS
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Exhibit A Sublease
Exhibit B First Amendment to Steam Agreement
Exhibit C Metering Points
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SHARED FACILITIES AND COORDINATED OPERATION AGREEMENT AND INDEMNITY
This SHARED FACILITIES AND COORDINATED OPERATION AGREEMENT AND
INDEMNITY (this "Agreement"), dated as of June 1, 2000 (the "Effective Date"),
between JEDI LINDEN NB, L.L.C., a Delaware limited liability company ("Linden
NB"), and COGEN TECHNOLOGIES LINDEN VENTURE, L.P., a Delaware limited
partnership ("Cogen").
WITNESSETH:
WHEREAS, Cogen owns, operates and maintains an existing cogeneration
facility (the "Existing Plant"), which produces electricity for delivery to
Consolidated Edison Company of New York, Inc. pursuant to a Power Purchase
Agreement, executed April 14, 1989, as amended from time to time (the "Con Ed
PPA") and steam for delivery to the Bayway Refinery pursuant to an Agreement
for the Sale of Steam between Cogen and Bayway Refining Company ("Bayway"),
dated as of April 8, 1993, as amended from time to time (the "Steam
Agreement");
WHEREAS, East Coast Power, L.L.C. ("ECP") and Tosco Refining, L.P.
("Tosco") have entered into an Energy Services Agreement, dated as of February
14, 2000, as amended from time to time (the "ESA"), pursuant to which ECP would
develop an approximately 172 megawatt ("MW") cogeneration facility (the "Linden
6 Facility") adjacent to the Existing Plant to produce electricity for sale to
Tosco for use at the Bayway Refinery and to produce steam for delivery to Cogen
for use by Cogen and sale by Cogen to Bayway pursuant to an amendment to the
Steam Agreement;
WHEREAS, Tosco would purchase from ECP electricity produced by the
Linden 6 Facility pursuant to the ESA and ECP may sell excess electricity from
the Linden 6 Facility to Third Parties and share with Tosco any net benefits
from those sales upon the terms and subject to the conditions set forth in the
ESA;
WHEREAS, ECP and Tosco contemplated that the Linden 6 Facility would
be located on land owned by Bayway and leased to Cogen (the "Existing Site") in
accordance with the Ground Lease Agreement, dated as of August 1, 1990, between
Cogen and Exxon Corporation ("Exxon"), and subsequently assigned by Exxon to
Bayway, as in effect on the date hereof, and as amended from time to time (the
"Existing Ground Lease Agreement");
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WHEREAS, the development and construction of the Linden 6 Facility and
the transactions contemplated in the ESA were intended to satisfy any rights or
obligations of Cogen and Bayway pursuant to Article 7 of the Existing Ground
Lease Agreement;
WHEREAS, the availability to the Existing Facility of steam produced
by the Linden 6 Facility will permit Cogen to achieve certain efficiencies in
the performance by Cogen of its obligations pursuant to the Con Ed PPA and the
Steam Agreement;
WHEREAS, ECP has assigned the ESA to Linden NB; and
WHEREAS, Linden NB and Cogen wish to set forth herein their respective
rights and obligations relative to the development, construction and operation
of the Linden 6 Facility, the integration of the Existing Plant, the Linden 6
Facility and the Bayway Refinery, the coordination of the operation of the
Existing Plant and the Linden 6 Facility and other matters set forth below.
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 as
follows:
ARTICLE 1. DEFINITIONS AND INTERPRETATION
1.1 Definitions. Initially capitalized terms in this Agreement shall
have the same meaning as set forth in the ESA, except as may specifically be
set forth in this Agreement, in which case they shall have the following
meanings:
"Actual Costs" means all costs, including fines or penalties assessed
by Governmental Authorities, incurred by Cogen on behalf of Linden NB to
provide any of the services provided to Linden NB pursuant to this Agreement in
excess of those that are or would have been incurred by Cogen for the operation
of the Existing Plant and paid or due to be paid to Third Parties. Actual Costs
will recognize the incremental economies of scale and efficiencies (if any)
made possible by virtue of the location of the Linden 6 Facility adjacent to
the Existing Plant, provided, however, Cogen in no fashion guarantees or
warrants to Linden NB that any such economies of scale or efficiencies will in
fact be realized. Actual Costs shall include an appropriate allocation of
capital expenditures necessary to provide Shared Services or Common Site
Services to the extent required.
"Affiliate" means, with respect to any Person, any other Person that
directly or indirectly, through one or more
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intermediaries, controls, is controlled by or is under common control with,
such Person.
"Agreement" means this Shared Facilities And Coordinated Operation
Agreement, including all exhibits hereto, as amended from time to time.
"Common Site Services" means, for any Month, all of the following
services provided by Cogen pursuant to this Agreement that are available to the
Existing Plant as may be necessary for the operation and maintenance of the
Linden 6 Facility, either as such services may be directly incurred on behalf
of the Linden 6 Facility or incremental to the costs incurred by Cogen on
behalf of the Existing Plant, including compressed air; water, condensate and
city water (not otherwise charged as boiler make up water); laboratory tests
and chemicals; shops and test equipment; waste water testing and disposal;
personnel uniforms, cleaning, lockers and sanitary facilities; ammonia, ammonia
tank and unloading facilities; site vehicles; office expense including
computers and software; telephones; fire water pumps and alarm system;
warehouse space; site security and maintenance; and all other similar services.
"Default" has the meaning assigned to it in Section 10.1.
"Easements" means the easements granted to Linden NB by Cogen under
the Sublease.
"ECP" means East Coast Power L.L.C., a Delaware limited liability
company, and its permitted successors and assigns.
"Effective Date" means the date set forth in the first paragraph of
this Agreement.
"ESA" has the meaning assigned to it in the recitals hereof. "Existing
Ground Lease Agreement" has the meaning assigned to it in the recitals hereof.
"Existing Plant" means the cogeneration facility and all appurtenant
structures and equipment owned by Cogen in Linden, New Jersey, as of the date
hereof and as generally described in the filing made with the FERC in docket
no. QF90-65-000, for the purpose of producing steam and generating electricity.
"Existing Site" has the meaning assigned to it in the recitals hereof.
"Exxon System" has the meaning assigned to it in the Existing Ground
Lease Agreement.
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"Force Majeure" has the meaning assigned to it in Section 11.2.
"Governmental Authority" means any governmental, legislative, judicial
or administrative body or court or any other Person authorized to make or
enforce laws or regulations or exercising executive, legislative, judicial,
regulatory or administrative functions or pertaining to government.
"Hazardous Materials" means any substance or material defined as a
hazardous waste, material or substance or defined as a toxic waste, material or
substance under any federal or state statute or regulations promulgated
thereunder intended to provide protection for public health and the
environment, including, without limitation, the Clean Air Act, the Clean Water
Act, CERCLA, the Solid Waste Disposal Act (including the Resource Conservation
and Recovery Act), the Toxic Substances Control Act, and their state statutory
and regulatory counterparts. The term "Hazardous Materials" shall include,
without limitation, petroleum and petroleum byproducts, materials containing
greater than one percent (1%) asbestos and dielectric fluids containing greater
than fifty parts per million (50 ppm) polychlorinated biphenyls.
"Interest Rate" means two percent (2%) over the Prime Rate; provided,
however, in no event shall the Interest Rate exceed the maximum rate of
interest permissible under the laws of the State of New Jersey.
"ISRA" means the New Jersey Industrial Site Recovery Act, N.J.S.A.
13:1K-6 et seq., together with related regulations, as such Act and regulations
may be amended from time to time.
"Lender" means any Person designated from time to time by Cogen in a
notice to Linden NB as a "Lender."
"Linden 6 Facility" has the meaning assigned to it in the recitals
hereof.
"Linden NB" means JEDI Linden NB, L.L.C., a Delaware limited liability
company, and its permitted successors and assigns.
"Month" means a calendar month, except for the calendar month that
includes the Commercial Operations Date, in which case the term means the
period commencing on such date and ending on the last day of such calendar
month.
"MW" means millions of xxxxx.
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"O&M Contractor" means the operation and maintenance contractor of the
Existing Plant.
"Party" means Linden NB or Cogen, as the case may be, and its
permitted successors and assigns.
"Person" means a natural person, corporation, limited liability
company, partnership, association, joint venture, real estate investment trust
or business trust (including any beneficiary thereof), unincorporated
association, and any other form of business, legal or governmental entity.
"Power Augmentation" means the additional generation of electricity at
the Linden 6 Facility for sale to Third Parties as a result of the injection of
steam into and the consumption of incremental fuel by the Linden 6 Facility.
"Prime Rate" means the bank prime loan rate as reported in Federal
Reserve Statistical Release H.15 (or a successor publication of similar
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.
"Prudent Electric Industry Practice" means any of the practices,
methods or acts (i) required by the National Electric Safety Code, the North
American Electric Reliability Council, any transmission provider or independent
system operator with whose electrical transmission facilities the Existing
Plant or the Linden 6 Facility is interconnected, or the successors of any of
them, whether or not a Party hereto is a member thereof, or (ii) otherwise
engaged in or approved by a significant portion of the electric generation
industry during the relevant time period or any of the practices, methods and
acts that in the exercise of reasonable judgment in light of the facts known at
the time the decision was made, could have been expected to accomplish the
desired result at a reasonable cost consistent with good business practices,
reliability, safety and expedition. Prudent Electric Industry Practice is not
intended to be limited to the optimum practice, method or act to the exclusion
of all others, but rather to be acceptable practices, methods or acts generally
accepted in the region.
"Release" shall mean any actual release, spill, emission, leak,
injection, deposit, disposal, discharge, dispersal, leaching or migration into
the atmosphere, surface water, groundwater, soil or subsurface strata.
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"Shared Services" are the services specifically set forth in Article 6
of this Agreement.
"Steam Agreement" has the meaning assigned to it in the recitals
hereof.
"Steam Component" has the meaning assigned to it in the Con Ed PPA,
provided, however, that solely for purposes of this Agreement, for any Month
the quantity specified therein as "the total Btu's generated by a source
external to the Plant" shall be the Steam Btu Credit recalculated with the
constants S1 and S2 set equal to one (1.0).
"Sublease" has the meaning assigned to it in Section 4.1.
"Subleased Premises" has the meaning assigned to it in Section 4.1.
"Taxes" shall mean any or all ad valorem, property (including host
community benefit fees and payments in lieu of taxes), occupation, severance,
generation, first use, conservation, Btu or energy, transmission, utility,
gross receipts, privilege, sales, use, consumption, excise, lease, transaction,
and other taxes or, governmental charges, licenses, fees, permits and
assessments, or increases therein, other than taxes based on any Party's or its
Affiliate's net income or net worth.
"Term" has the meaning assigned to it in Section 2.1.
"Third Party" means a Person other than a Party.
1.2 Interpretation.
A. Each Party acknowledges that the other Party and its
counsel have reviewed and revised this Agreement and that the normal rule of
construction to the effect that any ambiguities are to be resolved against the
drafting Party shall not be employed in the interpretation of this Agreement.
B. Defined terms in this Agreement shall include in the
singular number the plural, and in the plural number the singular. Whenever the
context requires, any pronoun shall include the corresponding masculine,
feminine and neuter forms. Article, section and exhibit references are to
articles and sections of and exhibits to this Agreement, except as otherwise
indicated.
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C. Unless otherwise stated, any reference in this Agreement
to any Governmental Authority or to any statutes and regulations shall include
reference to any successors to such Governmental Authority and to any successor
provisions to such statutes and regulations, respectively.
D. When used in this Agreement, the words "Btu" and "MMBtu"
when used to describe the energy equivalent of a quantity of fuel shall, unless
otherwise expressly indicated, refer to the higher heating value ("HHV") of
such fuel; the words "hereof," "herein," "hereunder" and words of similar
import shall, unless otherwise expressly indicated, refer to this Agreement as
a whole and not to any particular provision of this Agreement; the words "not
unreasonably withheld" and words of similar import shall, unless otherwise
expressly indicated, mean not unreasonably withheld, delayed or conditioned;
the words "include," "includes," and "including" shall be understood to mean
inclusion without limitation.
ARTICLE 2. TERM OF THIS AGREEMENT
2.1 Term. This Agreement shall be effective as of the Effective Date
and shall continue in effect until April 30, 2017, unless the ESA is terminated
prior to the Commercial Operations Date, in which case Linden NB shall have the
right, at its option, to terminate this Agreement (the "Term"). This Agreement
shall terminate if Cogen terminates the Sublease for any reason.
2.2 Extensions of Term. If the term of the ESA is extended pursuant to
section 4.2D(iv) thereof, at Cogen's sole discretion the term of this Agreement
may be extended and remain in effect until the conclusion of the term of the
ESA.
ARTICLE 3. REPRESENTATIONS AND WARRANTIES
3.1 Representations and Warranties of the Parties. As of the Effective
Date, each Party represents and warrants to the other that:
A. It is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization and is
qualified to do business in the State of New Jersey.
B. It has all requisite power and authority to execute and
deliver this Agreement.
C. Its execution and delivery of this Agreement have been
duly authorized by, or are in accordance with, its organizational instruments;
this Agreement has been duly executed
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and delivered for it by signatories so authorized; and this Agreement
constitutes a legal, valid and binding obligation enforceable against it in
accordance with its respective terms.
D. Neither the execution nor delivery by it of this Agreement
conflicts with, results in a breach of or constitutes a default under (i) any
of the terms, conditions or provisions of its certificate or articles of
incorporation, articles of association, limited liability company or
partnership agreement, by-laws or other constituent documents, (ii) any
material, federal, state or local law, or any order, rule or regulation of any
Governmental Authority having jurisdiction over it or its properties or by
which it or its properties may be bound, or (iii) any agreement or instrument
to which it is a Party or by which it or any of its properties may be bound,
other than with respect to any agreements or instruments for which consents or
approvals are required.
E. No suit, action or arbitration, or legal, administrative
or other proceeding is pending or threatened at law or in equity against it
that would affect the validity or enforceability of this Agreement, or the
ability of it to materially fulfill its obligations hereunder.
F. It has obtained all consents and approvals (if any)
required from Third Parties necessary for the execution, delivery and
performance of this Agreement.
3.2 Additional Representation, Warranty and Covenant of Linden NB.
X. Xxxxxx NB has caused an independent inquiry to be made of,
and has determined to its satisfaction, the existing capability of Cogen and
the Existing Plant to provide each and all of the Shared Services and Common
Site Services contemplated by this Agreement.
B Linden NB agrees that it shall not engage in any business
other than the ownership, development, construction, financing and operation of
the Linden 6 Facility and appurtenant facilities and the ownership, either
directly or indirectly, of the general and limited partnership interests in
Cogen Technologies Linden Ltd.
C Linden NB agrees that it shall not incur indebtedness for
borrowed money, in any form, including the issuance of any debt instruments
secured by its interest in the Sublease or the Linden 6 Facility.
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ARTICLE 4. CONSTRUCTION OF THE LINDEN 6 FACILITY
4.1 Sublease. Cogen and Linden NB have agreed that Linden NB shall
sublease a portion of the Existing Site (the "Subleased Premises") on which
Linden NB will construct, operate and maintain the Linden 6 Facility, and to
effectuate the purposes of this Agreement, which sublease is attached hereto as
Exhibit A (the "Sublease"). Cogen has obtained the approval of Bayway for such
Sublease.
4.2 Access. Pursuant to the Sublease, Cogen shall permit Linden NB,
its employees, contractors, agents and representatives access to, on and over
the Existing Site as reasonably necessary for Linden NB to construct, operate
and maintain the Linden 6 Facility as contemplated by the ESA; provided,
however, that such access shall not unreasonably interfere with Cogen's normal
business operations.
4.3 Location of Controls and Instruments. Cogen shall permit Linden
NB, at Linden NB's sole expense, to locate such controls and instruments for
the Linden 6 Facility in the control room of the Existing Plant as Cogen and
Linden NB may believe reasonably necessary for the coordinated operation by
Cogen of the Linden 6 Facility consistent with the terms of this Agreement.
Unless otherwise mutually agreed by the Parties, not later than sixty (60) days
after the Effective Date, Linden NB shall provide Cogen with Linden NB's plans
and specifications for controls and instrumentation for the Linden 6 Facility,
including controls and instruments that would be located in the control room of
the Existing Plant. Unless otherwise mutually agreed by the Parties, Cogen
shall have fifteen (15) days to review and notify Linden NB of changes it
requires to such plans and specifications that, in Cogen's sole judgement, are
required pursuant to Prudent Electric Industry Practice for the coordinated
operation of the Linden 6 Facility and the Existing Plant pursuant to this
Agreement and as contemplated by the ESA.
4.4 Construction of the Linden 6 Facility.
A Design and Construction. Linden NB shall cause the Linden 6
Facility to be designed and constructed on the Subleased Premises as
contemplated in the ESA. Linden NB shall cause the construction of the Linden 6
Facility to be conducted consistent with Prudent Electric Industry Practice and
as will not unreasonably interfere with Cogen's normal business operations.
B Steam Production Capability. Linden NB shall cause the
Linden 6 Facility to be designed and constructed so as to be capable of
delivering not less than 400,000 lbs per hour of steam to the Existing Plant
whenever the Linden 6 Facility is operating. Such steam shall conform to the
specification for steam set forth in Section 3.4 of the Steam Agreement. On or
before the
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Commercial Operations Date, Linden NB shall cause the construction contractor
for the Linden 6 Facility to demonstrate to Cogen's satisfaction that the
Linden 6 Facility is capable of delivering not less than 400,000 lbs. per hour
of steam per hour whenever the Linden 6 Facility is operating.
C Power Augmentation Capability. As soon as practicable after
the Commercial Operations Date, Linden NB shall cause the Linden 6 Facility to
be operated so as to demonstrate the capability of the Linden 6 Facility to
generate electricity by Power Augmentation, and such demonstration shall
determine the Power Augmentation Steam Btu Rate to be used thereafter.
4.5 Interconnection of Steam Headers and Delivery Point. Cogen shall
designate the point(s) where Linden NB shall, at its sole expense, interconnect
Linden NB steam piping with the steam piping of the Existing Plant and where
deliveries of steam from the Linden 6 Facility to the Existing Plant shall be
made and measured. At Linden NB's expense, Cogen shall provide Linden NB with
detailed specifications for the construction of such interconnecting steam
piping, which specifications shall be consistent with Prudent Electric Industry
Practice. Linden NB shall construct the interconnection in accordance with such
specifications and shall promptly correct any defects in such construction if
requested by Cogen. Linden NB shall coordinate with Cogen the construction of
the interconnection of Linden 6 Facility steam piping with the steam piping of
the Existing Plant so as to minimize any interruption of Cogen's normal
business operations.
ARTICLE 5. SHARED FACILITIES AND COORDINATED OPERATION
5.1 Operation and Maintenance of the Linden 6 Facility.
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A On or before ninety (90) days prior to the anticipated
Commercial Operations Date, Cogen, as agent for Linden NB and at Linden NB's
request, shall either (i) enter into a contract with the O&M Contractor for the
operation and maintenance of the Linden 6 Facility as contemplated in the ESA
and in accordance with applicable law, Prudent Electric Industry Practice and
this Agreement or (ii) cause its contract with the O&M Contractor to be amended
to include the coordinated operation and maintenance of the Existing Plant and
the Linden 6 Facility as contemplated in the ESA and in accordance with
applicable law, Prudent Electric Industry Practice and this Agreement. The
contract with the O&M Contractor or any amendment of the contract with the O&M
Contractor shall be in substance substantially the same as Cogen's contract
with the O&M Contractor, with such modifications as are reasonably necessary to
accommodate the terms of this Agreement. Cogen shall provide Linden NB with a
draft of (i) the contract with the O&M Contractor or (ii) the amendment of its
contract with the O&M Contractor as soon as reasonably possible in advance of
its execution and a copy of the final draft prior to its execution. Linden NB
shall have ten (10) Business Days to approve the final draft or request
reasonable changes, which approval shall not be unreasonably withheld. In the
event a conflict arises between the terms of this Agreement and the ESA, the
terms of this Agreement shall prevail.
B Nothing in this Agreement shall be deemed or construed to
create an obligation of Cogen:
(i) to operate the Existing Plant;
(ii) if operated, to operate the Existing Plant for the
benefit of Linden NB or in any manner except as may be in the
sole discretion of and for the sole benefit of Cogen or its
Affiliates; or
(iii) to operate the Linden 6 Facility in such manner as
would cause a reduction in the revenue Cogen may be entitled
to receive pursuant to any of Cogen's agreements with Third
Parties.
5.2 Steam Agreement Amendment.
A. On or before the Commercial Operations Date, and provided
that Linden NB shall have demonstrated to Cogen's satisfaction the capability
of the Linden 6 Facility to produce and deliver not less than 400,000 lbs. per
hour of steam to the Existing Plant whenever the Linden 6 Facility is
operating, Cogen shall execute the First Amendment to the Steam Agreement
(attached hereto as Exhibit B).
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B. After the Commercial Operation Date, Linden NB agrees that
all steam generated by the Linden 6 Facility shall be delivered to Cogen unless
Cogen, in its sole discretion, chooses not to accept all or a portion of such
steam.
5.3 Qualifying Facility Status.
A Prior to the commencement of Operational Testing of the
Linden 6 Facility, Cogen shall obtain and shall thereafter maintain the status
of the Existing Plant and the Linden 6 Facility as a single Qualifying
Facility; provided, however, that Cogen shall have no obligation to obtain or
maintain such Qualifying Facility status for the Linden 6 Facility in the event
of Bayway or Bayway's Affiliates failure or inability to take and use steam
pursuant to the Steam Agreement in quantities sufficient to maintain the
Qualifying Facility status of both the Existing Plant and the Linden 6
Facility.
B Cogen shall coordinate the operations of the Existing Plant
and the Linden 6 Facility so as to maintain such Qualifying Facility status;
provided, however, that solely to the extent necessary to maintain Qualifying
Facility status, Cogen may require the net electrical production of the Linden
6 Facility to be reduced to the extent consistent with Prudent Electric
Industry Practice prior to any change in the net electrical power production of
the Existing Plant.
C Cogen shall have no liability to Linden NB for any revenue
foregone or any expense incurred by Linden NB for replacement power as a result
of any actions taken by Cogen pursuant to this Section 5.3.
D Cogen shall have no further obligation to maintain the
status of the Existing Plant and the Linden 6 Facility as a Qualifying Facility
whenever Cogen no longer is maintaining the Qualifying Facility status of the
Existing Plant; provided that in such event Cogen shall cooperate and use
reasonable efforts to obtain and maintain the status of the Linden 6 Facility
as a separate Qualifying Facility, if so requested by Linden NB.
5.4 Compliance with ISRA. In the event Linden NB closes, ceases or
transfers ownership or operations of the Linden 6 Facility, or causes any other
event to occur triggering the requirements of ISRA, Linden NB shall, at its
sole cost and expense, comply with ISRA and Linden NB shall make or cause to be
made all submissions to, provide or cause to be provided all information to,
and comply with or cause to be complied with all requirements of the New Jersey
Department of Environmental Protection relative to ISRA.
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ARTICLE 6. PRICE FOR SHARED SERVICES
For each Month, the cost of Shared Services shall be determined as
follows:
6.1 O & M Contract Expense. In any Month, Linden NB shall pay Cogen
the Actual Cost incurred by Cogen pursuant to the contract with the O & M
Contractor (as provided in such contract or as such contract has been amended
pursuant to Section 5.1 hereof) for the operation of the Linden 6 Facility as
contemplated by the ESA.
6.2 Price for Boiler Feed Water Delivered. In any Month, Linden NB
shall pay Cogen the Actual Cost incurred by Cogen for water and chemicals for
preparing, processing and storing boiler feed water delivered to Linden NB
during such Month.
6.3 Price for Steam Delivered to the Existing Plant. In any Month,
Cogen shall pay Linden NB for all steam delivered by Linden NB to the Existing
Facility and accepted by Cogen, an amount which shall be the lesser of:
A the revenue Cogen will receive for the Steam
Component in such Month pursuant to the Con Ed PPA
for steam delivered by Linden NB during such Month,
or
B the Steam Credit pursuant to the ESA.
6.4 Price for Steam Delivered for Power Augmentation. For all hours in
any Month in which the Existing Plant delivers steam to the Linden 6 Facility
for Power Augmentation, Linden NB shall pay Cogen the Power Augmentation Cost
of Steam.
6.5 Price for Common Site Services. In any Month, Linden NB shall pay
Cogen for Common Site Services incurred on behalf of Linden NB during such
Month at Actual Cost plus a general and administrative expense component of
fifteen percent (15%), provided that such general and administrative expense
component shall not apply to any capital expenditures included within Actual
Costs.
ARTICLE 7. METERING
7.1 Measurement Location. The Metering Points for steam and boiler
feed water shall be as set forth in Exhibit C or as may be otherwise mutually
agreed by the Parties from time to time.
7.2 Measuring Equipment and Stations.
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A Meters. Linden NB shall, at its sole expense,(i) install,
own, operate and maintain measuring and metering stations and equipment for the
measurement of steam delivered by Linden NB to Cogen and boiler feed water
delivered by Cogen to Linden NB sufficient to permit an accurate determination
of the quantity and quality of such deliveries; and (ii) exercise reasonable
care in the maintenance and operation of such measuring equipment so as to
assure an accurate determination of the quantity and quality of such
deliveries. The measuring equipment installed by Linden NB shall be used by
Cogen to determine the billing hereunder and shall be sealed. Such seals shall
be broken only by Cogen, in the presence of a representative of Linden NB, or
by an independent party unrelated, directly or indirectly, to either Party and
mutually agreeable to the Parties (the "Independent Party") and only when the
metering equipment is to be inspected, tested or adjusted as described in
Section 7.3. Linden NB shall provide Cogen or the Independent Party, as the
case may be, access to such metering equipment at all reasonable times for the
purposes of inspecting, testing and adjusting the same, provided that such
access shall not interfere with Cogen's or Linden NB's normal business
operations. In the event that Linden NB's measuring equipment fails to register
during any period of time, and except as provided in Section 7.4, Cogen shall
determine quantities from its own metering equipment as set forth in Section
7.2B or from production records if no such metering equipment is available.
B Cogen. Cogen may own, operate and maintain additional
metering equipment at its sole expense, provided that such metering equipment
shall be operated and maintained in a manner that does not interfere with
Linden NB's metering equipment. Should Cogen so elect and should any metering
equipment installed by Linden NB fail to register during any period of time,
Cogen's metering equipment shall be used to determine the quantity of steam and
boiler feed water delivered during such period in lieu of Cogen's estimates
thereof to the extent Cogen's measuring equipment shall have been tested and
maintained in accordance with Section 7.3 and 7.5. Cogen shall provide access
for Linden NB and, if applicable, the Independent Party, to the metering
equipment at all reasonable times for the purposes of witnessing, testing and
adjusting the same, provided that such access shall not interfere with Cogen's
and Linden NB's normal business operations.
7.3 Testing.
A General. The accuracy of any measuring equipment to be used
for purposes of measuring steam or boiler feed water shall be tested and
verified at least annually. If the Party not responsible for maintaining such
metering equipment requests a
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verification test to be made, such test shall be at such Party's expense if the
measuring equipment proves to be accurate within a tolerance of one percent
(1%). If errors greater than such tolerances are discovered, the test shall be
at the expense of the Party responsible for maintaining such measuring
equipment.
B Cooperation. If either Party notifies the other Party 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.
C Notice and Right to Witness. Each Party shall be given at
least five (5) days notice prior to the test of any metering equipment. Each
Party shall have the right to have a representative present at any time that
any metering equipment is to be tested; provided, however, that a Party's
failure to have a representative present at the test shall not affect the
validity of the test so long as the notice required under the preceding
sentence shall have been given.
7.4 Corrections. If, upon testing, any metering equipment is found to
be in error by not more than one percent (1)% tolerance when reading the
average operating range over the past year, then previous recordings of such
equipment shall be considered accurate, but such equipment shall be promptly
adjusted by the Independent Party to record correctly. If, upon testing, any
metering equipment shall be found to be inaccurate by more than such tolerance,
then such equipment shall be promptly adjusted and retroactive billing
adjustments for such errors shall be made for (i) the actual period during
which inaccurate measurements were made, if that period can be reasonably
determined; or (ii) if the period cannot be reasonably determined, one-half
(1/2) of the period from the date of the last previous test of the metering
equipment, but not to exceed six (6) Months.
7.5 Maintenance and Records.
A Maintenance. Each Party shall have the right to have a
representative present whenever the other Party or the Independent Party, as
applicable, cleans, changes, repairs, inspects, tests, calibrates, or adjusts
any metering equipment or any equipment used in checking measurements. Each
Party shall give not less than five (5) days notice to the other Party in
advance of taking any of such actions.
B Records. The records from the test of any metering
equipment shall remain the property of the Party at whose expense the testing
occurred, but, upon request, each Party shall submit to the other its records
and charts (or, at its option, copies thereof), together with calculations
therefrom, for inspection and
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copying, subject, in the case of originals, to return within ten (10) days
after receipt thereof.
ARTICLE 8. INVOICES AND PAYMENT
8.1 Billing.
A. There shall be a single Monthly invoice. Cogen shall
render to Linden NB (by regular mail, facsimile or other acceptable means
pursuant to Section 15.1) for each Month during the Term, an invoice setting
forth the total amount due Cogen or Linden NB, as the case may be, for the
Shared Services, and for any other amounts due under this Agreement, including
any indemnification obligations under Section 12.2. If Cogen from time to time
does not know the actual amount of any of the Shared Service or any other
charge due for a particular Month when Cogen prepares an invoice pursuant to
this Section 8.1, Cogen may reasonably estimate such cost using all available
data.
B. To the extent that an estimate is provided and used for
purposes of determining any Shared Service, Cogen shall provide Linden NB a
statement of the actual amount of such charge as soon as available to Cogen,
and Cogen shall make the appropriate adjustment in the following Month's
invoice.
8.2 Payment.
A. On or before twenty (20) days after receipt of Cogen's
invoice, or if such day is not a Business Day, the immediately following
Business Day, Linden NB or Cogen, as the case may be, shall tender payment of
the amount set forth on such invoice to the payment address provided in Section
15.1. Overdue payments shall accrue interest from and including the due date
to, but excluding, the date of payment at the Interest Rate.
B. If Linden NB in good faith disputes an invoice, Linden NB
shall provide a written explanation of Linden NB's good faith basis for the
dispute not later than thirty (30) days after the due date for amounts, and
Linden NB shall pay the entire invoice no later than the due date.
Notwithstanding the foregoing, however, Linden NB shall retain the right to
dispute invoices after payment thereof for a period of three (3) years after
the date on which the invoice was paid. If any amount disputed by Linden NB is
determined to be due to Linden NB, it shall be paid to Linden NB by Cogen
within ten (10) days of such determination, along with interest accrued at the
Interest Rate from the date initial payment of such disputed amount was
received by Cogen until the date such amounts are actually paid to Linden NB.
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8.3 Adjustments. Cogen shall promptly prepare and deliver to Linden NB
an invoice setting forth any adjustments for discrepancies in billing
identified through meter verifications pursuant to Article 7 or for any other
reason that would require immediate reimbursement of billed amounts to Linden
NB by Cogen or additional payments by Linden NB to Cogen hereunder, along with
interest accrued at the Interest Rate from the date such payments or
reimbursements should have been paid in ordinary course to Linden NB or Cogen,
as the case may be.
ARTICLE 9. TAXES
Included in the payments by Linden NB pursuant to Section 6.1, Linden
NB shall pay Cogen for all additional Taxes arising with respect to the
location and construction of the Linden 6 Facility on the Existing Site
pursuant to this Agreement. Linden NB shall indemnify, defend and hold harmless
Cogen from any Claims for such additional Taxes. Each Party shall use
reasonable efforts to administer this Agreement and implement the provisions in
accordance with the intent to minimize Taxes, and shall use reasonable efforts
to obtain and cooperate with the other Party in obtaining any exemption from or
reduction of any Tax.
ARTICLE 10. DEFAULT AND REMEDIES
10.1 Default. The occurrence of any of the following events shall
constitute a "Default".
A Either Party (the "Defaulting Party") fails to pay any
amounts due hereunder and such breach continues for a period of fifteen (15)
days after notice thereof shall have been received by the Defaulting Party.
B Either Party fails to materially perform any obligation
hereunder, or breaches a material term or condition of this Agreement,
including a breach of its representations and warranties or covenants
hereunder, and such breach continues for a period of sixty (60) days after
notice thereof has been received by the Defaulting Party; provided that if such
breach is not reasonably capable of being cured within such sixty (60) day
period and provided that the Defaulting Party reasonably commences to cure such
breach within such sixty (60) day period, such sixty (60) day period shall be
extended for such additional period, but in no event longer than eighteen (18)
Months, as is reasonably necessary to remedy such failure if and for so long as
the Defaulting Party is diligently continuing efforts to pursue a cure for such
breach.
C Either Party: (i) makes an assignment or any general
arrangement for the benefit of creditors; (ii) files a
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petition or otherwise commences, authorizes or acquiesces in the commencement
of a proceeding or case under any bankruptcy or similar law for the protection
of creditors, or such petition is filed against it and such proceeding remains
undismissed for sixty(60) days; (iii) otherwise becomes bankrupt or insolvent
(however evidenced); or (iv) becomes unable to pay its debts as they fall due.
D Any sale, assignment or other transfer in violation of
Article 14.
E Linden NB fails to timely perform any of its obligations
under the Sublease and such breach continues for a period of sixty (60) days
after notice thereof has been received by Linden NB; provided that if such
breach is not reasonably capable of being cured within such sixty (60) day
period and provided that Linden NB reasonably commences to cure such breach
within such sixty (60) day period, such sixty (60) day period shall be extended
for such additional period, but in no event longer than six (6) Months, as is
reasonably necessary to remedy such failure if and for so long as Linden NB is
diligently continuing efforts to pursue a cure for such breach.
10.2 Remedies. If a Default has occurred and is continuing, the Party,
if any, that is not in Default may, subject to Article 13, take any action at
law or in equity that may be available to it to enforce the payment of any
damages or the performance of all obligations of the Party in Default
hereunder. Notwithstanding the foregoing, the Non-Defaulting Party shall have
no right to terminate this Agreement unless the Non-defaulting Party shall have
provided all Lenders notice of a breach pursuant to Section 10.1. The
Defaulting Party and any Lender shall each have no less than the specified
amount of time to cure such breach, which time shall expire on the later of the
dates available for such cure to the Defaulting Party, any Lender or any
Existing Plant Lender.
10.3 Damages. Upon the occurrence of a Default hereunder, the
Non-Defaulting Party may elect to terminate this Agreement by providing notice
thereof to the Defaulting Party and shall be entitled to seek damages as
available at law. Notwithstanding anything to the contrary in this Agreement,
the parties acknowledge that the O&M Contractor will be responsible for the
operation of the Linden 6 Facility and that the contract with the O&M
Contractor contains customary limits on the liability of the O&M Contractor.
Accordingly, the liability of Cogen under this Agreement, except in the case of
a breach which is the result of wilful misconduct or gross negligence by Cogen,
shall be limited to the amount of the applicable cap on liability under the
contract with the O&M Contractor.
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10.4 Duty to Mitigate. Each Party shall use commercially reasonable
efforts to mitigate the incurrence of damages.
ARTICLE 11. FORCE MAJEURE
11.1 Force Majeure. If a Party is rendered wholly or partly unable to
perform its obligations under this Agreement because of a Force Majeure event,
that Party shall be excused from whatever performance is affected by such Force
Majeure event but only to the extent so affected, provided that: (i) the Party,
within two (2) Business Days after the occurrence of the Force Majeure event,
gives the other Party notice describing the particulars of the occurrence and
its estimated duration; (ii) the suspension of performance is of no greater
scope and of no longer duration than is required by the Force Majeure event;
and (iii) such Party uses commercially reasonable efforts to remedy its
inability to perform, to secure substitute suppliers or services and to resume
its full performance under this Agreement; provided, however, that such Party's
obligation to remedy its inability to perform shall not require the settlement
of any strike, walkout, lockout or other labor dispute on terms that, in the
sole judgment of the Party involved in said dispute, are contrary to its best
interest. Notwithstanding anything to the contrary contained in this Agreement,
in no event shall any Party be excused by reason of Force Majeure from its
obligation to pay any amounts due under this Agreement.
11.2 Force Majeure Defined. "Force Majeure" means any event beyond the
reasonable control of the Party affected thereby that adversely affects the
ability of such Party to perform any obligation hereunder (other than failure
to pay money when due), including but not limited to the following: acts of
God, war or foreign enemy; unusually severe weather conditions; flood;
earthquake; storm; hurricane; epidemics; lightning; fire; drought; explosion;
riot; civil disturbance; strikes, lockouts or similar labor interruptions or
labor disputes; sabotage; an event of force majeure occurring with respect to,
or a suspension, curtailment or service interruption of, any Third Party
supplier of electricity, gas, water or waste water, or any Third Party
electricity, gas, water or waste water transmission or distribution provider
(including any independent system operator or equivalent, and any interstate
natural gas pipeline or any local electricity, gas or water distribution
company or provider of waste water); arrests and restraints of people; any
action of a court or a binding order of any Governmental Authority; inability
after diligent application to obtain or maintain required permits, zoning or
other required approvals from any Governmental Authority or other Third Party
whose consent is required as a condition to a Party's performance hereunder;
the surface or subsurface presence at the site of pollution, Hazardous
Materials or contamination, which
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shall prevent the completion schedule for, or the commercial operation of, the
Linden 6 Facility; failure of Third Party facilities or Third Party major
equipment breakdown; failure of any contractor, subcontractor or supplier to
furnish labor, services, materials or equipment on the dates agreed to if such
failure is caused by a Force Majeure; a change in applicable law; the failure
of any public agency or Governmental Authority or any utility having
jurisdiction of the Existing Site to maintain utilities, services, water and
sewer lines and power transmission lines; and any circumstance that would in
the reasonable opinion of such Party endanger persons or property. A failure of
equipment or machinery controlled or operated by a Party (whether leased or
owned) shall not be considered Force Majeure irrespective of whether such
equipment or machinery has been designed, manufactured, installed, or
maintained by the Party or a Third Party unless such failure was due to a Force
Majeure.
ARTICLE 12. INDEMNIFICATION
12.1 Survival of Indemnifications. The provisions of this Article
shall survive the expiration or earlier termination of this Agreement and the
Sublease.
12.2 Indemnification.
A Linden NB shall defend, indemnify and hold Cogen harmless
from and against any and all claims, demands, losses (including lost revenue
under any of Cogen's agreements with Third Parties), settlements, expenses,
costs, damages, and liabilities (including reasonable attorneys' fees, whether
in litigation against Third Parties or in an adversarial proceeding brought by
one Party against the other)(collectively, "Claims"), including without
limitation Claims resulting from a Release of Hazardous Materials by Linden NB
on the Existing Site or the areas encumbered by the Easements, made against or
incurred by Cogen in any way arising out of, or resulting from or in connection
with, Linden NB's actions or omissions to act or that of any Third Party acting
on behalf of or for Linden NB, or otherwise in connection with this Agreement,
the Sublease, the Existing Ground Lease Agreement, the Subleased Premises, the
Easements or the construction, operation, maintenance and repair of the Linden
6 Facility, except to the extent that such Claims result solely from (i) the
wilful misconduct or gross negligence of Cogen or (ii) a breach by Cogen of its
obligations under this Agreement, the Sublease or the Existing Ground Lease
Agreement that is the direct result of its wilful misconduct or gross
negligence and that is not the direct result of a material breach by Linden NB
under this Agreement, the Sublease or the Existing Ground Lease Agreement. IN
NO EVENT SHALL LINDEN NB BE LIABLE TO COGEN FOR TREBLE, EXEMPLARY OR PUNITIVE
DAMAGES OF ANY TYPE UNDER ANY CIRCUMSTANCES
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(OTHER THAN AS MAY BE ASSERTED AGAINST COGEN IN LITIGATION WITH THIRD PARTIES),
WHETHER OR NOT SUCH DAMAGES MAY BE AVAILABLE UNDER STATE OR FEDERAL LAW, AND
THE PARTIES HEREBY WAIVE ANY RIGHT THEY MIGHT OTHERWISE HAVE TO RECOVER ANY
SUCH DAMAGES.
B Cogen shall defend, indemnify and hold Linden NB harmless
from and against any and all Claims made by Third Parties (including any
Governmental Authority) against or incurred by Linden NB in any way arising out
of or resulting from or in connection with a Release of Hazardous Materials by
Cogen on the Existing Site or the areas encumbered by the Easements, except to
the extent that such Claims result solely from (i) the wilful misconduct or
gross negligence of Linden NB, (ii) a breach by Linden NB of its obligations
under this Agreement or the Sublease that is not the direct result of a
material breach by Cogen under this Agreement, the Sublease or the Existing
Ground Lease Agreement or (iii) Linden NB's actions or omissions to act or that
of any Third Party acting on behalf of or for Linden NB resulting in any
liability of Cogen pursuant to ISRA. IN NO EVENT SHALL COGEN BE LIABLE TO
LINDEN NB FOR TREBLE, EXEMPLARY OR PUNITIVE DAMAGES OF ANY TYPE UNDER ANY
CIRCUMSTANCES (OTHER THAN AS MAY BE ASSERTED AGAINST LINDEN NB IN LITIGATION
WITH THIRD PARTIES), WHETHER OR NOT SUCH DAMAGES MAY BE AVAILABLE UNDER STATE
OR FEDERAL LAW, AND THE PARTIES HEREBY WAIVE ANY RIGHT THEY MIGHT OTHERWISE
HAVE TO RECOVER ANY SUCH DAMAGES.
ARTICLE 13. DISPUTE RESOLUTION
13.1 Dispute Resolution.
A The Parties agree to work in good faith to resolve any
claim, demand, cause of action, dispute or controversy arising out of or
relating to this Agreement or the Sublease. The Parties shall refer any such
dispute to representatives of each Party's senior management for resolution.
B If the representatives of each Party's senior management
are unable to resolve such dispute within ten (10) Business Days after such
referral, the provisions of Section 13.2 shall apply.
13.2 Binding Arbitration. Any dispute not resolved pursuant to Section
13.1 above shall be subject to binding arbitration in accordance with the terms
of this Section 13.2.
A Notice; Selection of Arbitrators. Within thirty (30) days
after the delivery by a Party to the other Party of any notice of a dispute,
the Parties shall endeavor to agree upon an appropriately qualified, neutral
Third Party arbitrator to resolve
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such dispute. If the Parties cannot agree upon a single arbitrator within such
thirty (30) day period, then within fifteen (15) days after the occurrence of
the Parties' failure to agree, each shall appoint an arbitrator, and the two
arbitrators shall, within fifteen (15) days after both have been appointed,
designate a third appropriately qualified neutral arbitrator. While the third
arbitrator shall be neutral, the two Party-appointed arbitrators are not
required to be neutral, and it shall not be grounds for removal of either of
the two Party-appointed arbitrators or for vacating the arbitrators' award that
either of such arbitrators has past or present relationships with the Party
that appointed such arbitrator. Either Party may seek enforcement in any court
of competent jurisdiction in New York, New York of the obligation of the other
Party to appoint an arbitrator and otherwise facilitate the resolution of
disputes in accordance with this Article 13. In addition, in the event the
Party-appointed arbitrators cannot agree upon a third arbitrator, either Party
may seek judicial appointment of such arbitrator in any such court of competent
jurisdiction.
B Qualifications of Arbitrators. Each arbitrator appointed
under this Article 13 shall be a business person with expertise in the electric
generation industry. The single appropriately qualified, neutral Third Party
arbitrator or the third appropriately qualified neutral arbitrator referred to
Section 13.2A above shall be a person who has over eight years professional
experience in electric industry related matters and who has not previously been
employed by either Party and does not have a direct or indirect interest in
either Party or the subject matter of the arbitration.
C Procedures. Arbitration shall be conducted in accordance
with the rules of arbitration of the Federal Arbitration Act and, to the extent
an issue is not addressed by the federal law on arbitration, by the Commercial
Arbitration Rules of the American Arbitration Association. The validity,
construction, and interpretation of this agreement to arbitrate, and all
procedural aspects of the arbitration conducted pursuant hereto shall be
decided by the arbitrators. In deciding the substance of the Parties' disputes,
the arbitrators shall refer to the governing law. The arbitration proceeding
shall be conducted in New York, New York. To the fullest extent permitted by
law, any arbitration proceeding and the arbitrators award shall be maintained
in confidence by the Parties. Each Party shall pay its own costs and expenses
with respect to any arbitration hereunder and the Parties shall share equally
in the costs of the third arbitrator.
D Award. The arbitrators shall have no authority to award
treble, exemplary or punitive damages of any type under any
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circumstances whether or not such damages may be available under state or
federal law, or under the Federal Arbitration Act, or under the Commercial
Arbitration Rules of the American Arbitration Association, and the Parties
hereby waive any right they might otherwise have to recover any such damages.
The arbitrator(s) shall endeavor to complete any arbitration within ninety (90)
days after the matter has first been submitted to it or them under this Section
13.2.
E Determinations Binding. Judgment may be entered on any
determination by the arbitrator(s) as to an appropriate resolution that is
within the authority of the arbitrator(s), and such determination shall be
binding on the Parties and shall be enforceable in any court of law having
jurisdiction over the Parties, as appropriate. Any resolution determined by the
arbitrator(s) shall be the exclusive remedy available to each Party with
respect to the matter submitted to arbitration.
13.3 Burden of Proof. In the event that Linden NB commences any
litigation or arbitration between Cogen and Linden NB regarding (i) the costs
and expenses of operating and maintaining the Linden 6 Facility that have been
paid or are due and payable to Third Parties by Cogen and have not been
reimbursed to Cogen by Linden NB pursuant to this Agreement or (ii) any lost
revenues under any of Cogen's agreements with Third Parties directly arising
out of the construction, operation and maintenance of the Linden 6 Facility as
contemplated by this Agreement, Linden NB shall bear the burden of establishing
that Cogen is not entitled to reimbursement of such costs and expenses by
Linden NB in accordance with the terms and conditions of this Agreement.
ARTICLE 14. ASSIGNMENT
14.1 General. Except as provided in this Article 14, neither Party may
assign or otherwise transfer this Agreement or any of its rights hereunder to
any other Person (i) without the express written consent of the other Party,
which consent shall not be unreasonably withheld and (ii) without also
assigning or otherwise transferring the Sublease to the same assignee. Consent
shall be deemed given if the other Party does not respond within twenty (20)
Business Days of being notified of a Party's intention to make such an
assignment.
14.2 Permitted Assignments. Either Party may assign this Agreement
together with the Sublease to an Affiliate.
14.3 Further Assurances. If reasonably requested by a Party proposing
to effect an assignment pursuant to this Article 14, the other Party shall
reasonably cooperate to facilitate such proposed assignment, including without
limitation by agreeing to furnish an
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estoppel certificate if and to the extent appropriate with respect to the
assigning Party's compliance under this Agreement.
14.4 Violations a Default; Further Remedies. Any sale, assignment or
other transfer by a Party in violation of this Article 14 shall constitute a
Default hereunder at the option of the other Party.
ARTICLE 15. NOTICES
15.1 General. All notices, notifications, invoices, payments, consents
or other communications between the Parties shall be given in writing and shall
either be delivered by hand or sent by certified or registered mail, return
receipt requested, or by facsimile followed immediately by certified or
registered mail, return receipt requested, as follows:
If to Cogen, to:
Cogen Technologies Linden Venture, L.P.
Penzoil Building - South Tower
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000
Attention: President
Facsimile: 000-000-0000
with a copy to:
Enron North America Corp.
0000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
Attn: Xx. Xxxx Xxxxxxxxxx
Facsimile: (000) 000-0000
If to Linden NB, to:
JEDI Linden NB, L.L.C.
Pennzoil Building - South Tower
000 Xxxxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxx, Xxxxx 00000
Attn: Xx. Xxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
with a copy to:
Enron North America Corp.
0000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
Attn: Xx. Xxxx Xxxxxxxxxx
Facsimile: (000) 000-0000
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Notices shall be deemed received when delivered by hand, upon receipt (as
indicated on a return certificate), or when sent by facsimile.
15.2 Changes. Either Party may change this address for notice
hereunder, or provide for additional Persons to be noticed, by giving the other
Party notice as provided above.
15.3 Holidays. If the date on which a notice is due, or a prescribed
action is necessary falls on a day that is not a Business Day, the date on
which such notice or action shall be due shall be extended until the next
succeeding Business Day.
ARTICLE 16. CONFIDENTIALITY
The Parties agree that all information relating to this Agreement and
the terms or conditions of this Agreement or disclosed pursuant to any term or
provision of this Agreement shall be kept confidential and shall not be
disclosed or used for any purpose other than matters related to this Agreement.
Such obligations of confidentiality shall extend to all such information,
whether exchanged orally or in written or electronic forms, and whether or not
designated at the time exchanged as confidential and shall survive the
termination of this Agreement by three (3) years. Each Party shall be permitted
to disclose confidential information to such Party's and its Affiliates'
officers, directors, employees, agents, counsel, accountants, consultants,
contractors or advisors who need to know such information for the purpose of
implementing this Agreement or the transactions contemplated hereby, and agrees
to notify such Persons of the confidential nature of such information, and to
be responsible for any unauthorized disclosure of such information by such
Persons. Each Party shall be permitted to disclose confidential information to
those of its Lenders and prospective Lenders or prospective purchasers who
agree to keep information confidential by executing a confidentiality agreement
in form and substance which reasonably satisfies the provisions of this
Article. Information shall not be deemed to be confidential if it (i) was in
the public domain prior to the date hereof, (ii) becomes publicly available
after the date hereof other than as a result of the unauthorized disclosure
thereof by a Party or by an officer, director, employee, agent or Affiliate of
a Party, or (iii) is required to be disclosed pursuant to applicable laws or
regulations or pursuant to administrative or judicial process; provided,
however, that the disclosing Party provides the non-disclosing Party with
written notice of the information to be
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disclosed as far in advance of its disclosure as is practicable and that,
except with regard to disclosures to the Securities and Exchange Commission,
the disclosing Party uses its best efforts to obtain assurances that
confidential treatment will be accorded to such information. The Parties shall
be entitled to all remedies available at law or in equity to enforce or seek
relief in connection with this confidentiality obligation.
ARTICLE 17. FURTHER ASSURANCES
17.1 General. Each Party agrees to execute and deliver all further
instruments and documents, and take any further action that may be reasonably
necessary to effectuate the purpose and intent of this Agreement.
17.2 Permits and Governmental Approvals. The Parties will cooperate
with each other and shall use reasonable efforts to assist the other Party in
obtaining all permits and approvals from any Governmental Authority required
for the construction and operation of the Linden 6 Facility, and as may be
required to maintain the status of the Existing Plant and the Linden 6 Facility
as a Qualifying Facility, and for favorable Tax treatments. At Cogen's request
after the Commercial Operations Date, Linden NB shall use commercially
reasonable efforts, at Linden NB's expense, to modify or amend any such permits
or approvals, reasonably necessary to facilitate Cogen's operation of the
Linden 6 Facility pursuant to this Agreement.
17.3 Financing. Cogen understands that Linden NB or its Affiliates may
from time to time arrange financing relating to Linden NB, and Cogen agrees to
cooperate with Linden NB's or its Affiliates' financing efforts. If any Lender
requires any consents to this Agreement, Linden NB agrees to enter into good
faith negotiations with Cogen with respect to such Lender's or investor's
requested consents and will provide, at Cogen's request, opinions of counsel or
estoppel certificates reasonably related thereto.
ARTICLE 18. MISCELLANEOUS
18.1 Severability. If any provision of this Agreement shall be held
invalid or unenforceable by any court of competent jurisdiction, then such
holding shall not invalidate or render unenforceable any other provision hereof
and the Parties shall immediately renegotiate in good faith such provision to
eliminate such invalidity or unenforceability, consistent with the intent of
this Agreement.
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18.2 Captions, Titles and Headings. The captions, titles, and headings
used in this Agreement are for convenience only and shall not affect the
construction of any terms of this Agreement.
18.3 Governing Law. This Agreement shall be governed by and construed
in accordance with the internal laws of New Jersey, without regard to
principles of conflict of laws thereof.
18.4 Non-Waiver. Except as may be expressly provided in this Agreement
or in a writing signed by the Party against whom a waiver is claimed, the
failure of either Party to insist in any instance on strict performance of any
provision of this Agreement shall not be construed as a waiver of any such
provision or the relinquishment of any rights thereunder in the future, but the
same shall continue and remain in full force and effect.
18.5 Relationship of the Parties. The Parties are and intend to be
independent contractors with respect to each other for all purposes of this
Agreement. THIS AGREEMENT SHALL NOT BE INTERPRETED OR CONSTRUED TO CREATE AN
ASSOCIATION, TRUST, PRINCIPAL--AGENT RELATIONSHIP, JOINT VENTURE OR PARTNERSHIP
BETWEEN THE PARTIES OR TO IMPOSE ANY PARTNERSHIP, AGENCY OR FIDUCIARY
OBLIGATION OR LIABILITY UPON EITHER PARTY. Neither Party shall have any right,
power or authority to enter into any agreement or undertaking for, or act on
behalf of, or to act as or be an agent or representative of, or to otherwise
bind the other Party, except as may be expressly provided herein to perform a
duty or obligation specifically set forth herein, and then only to the extent
reasonably necessary to perform such duty or obligation.
18.6 Parties in Interest. This Agreement shall inure only to the
benefit of Cogen and Linden NB and their permitted successors and assigns.
Nothing contained in this Agreement, whether express or implied, is intended to
confer upon any Third Party any benefits, rights or remedies.
18.7 Non-Dedication of Facilities. Cogen and Linden NB agree that no
part of the Existing Plant or the Linden 6 Facility shall be dedicated for the
sale of electrical or thermal energy to the public generally and
indiscriminately, for the exercise of a public franchise, or in the exercise of
a public utility function.
18.8 Modification. The provisions of this Agreement, including any
exhibits, may be modified only by written agreement duly executed by each
Party.
18.9 Entire Agreement. This Agreement and the Sublease shall
constitute the entire agreement between the Parties and
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cancels and supersedes all previous agreements and understandings between the
Parties with respect to the subject matter hereof.
18.10 Attorneys' Fees. If any lawsuit or other action or proceeding
relating to this Agreement is brought by either Party against the other Party
hereto, the prevailing Party shall be entitled to recover from the other Party
its reasonable attorneys' fees, costs and disbursements (in addition to any
other relief to which such Party may be entitled).
18.11 Costs and Expenses. In any dispute where a Party is entitled to
reimbursement of costs, "costs" shall include interest on any judgment, court
costs, and reasonable legal fees and expenses (including allocated fees of
in-house counsel).
18.12 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall constitute an original but all of which, when
taken together, shall constitute only one legal instrument.
18.13 Survival of Obligations. Except as may be expressly provided in
this Agreement, termination of this Agreement for any reason shall not relieve
either Party of any obligation accruing or arising prior to such termination.
18.14 Insurance. Linden NB shall maintain, at its sole expense,
liability and property damage insurance coverage for the Linden 6 Facility
(including boiler and machinery coverage) equivalent to that maintained by
Cogen for the Existing Plant and, during construction of the Linden 6 Facility
and until commercial operation thereof, shall maintain or cause to be
maintained insurance coverage substantially as set forth in Exhibit H to the
Construction Contract (attached hereto and made a part hereof) with such
deductibles and other changes as would not materially affect the extent and
scope of coverage provided under such insurance policies. Cogen shall be
maintained as an additional insured on all such insurance policies. Linden NB
shall furnish to Cogen from time to time certified copies of the policies under
which such insurance is issued, certificates of insurance and such other
information relating to such insurance as Cogen may request. In the event
Linden NB fails to take out or maintain the full insurance coverage required by
this Section, Cogen may (but shall not be obligated to) obtain such insurance
and pay premiums on the same. All amounts so advanced by Cogen shall be
reimbursed immediately by Linden NB on demand.
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IN WITNESS WHEREOF, the Parties have hereto executed this Agreement on
the dates shown beneath their respective signatures, intending the rights and
obligations of the Parties to become effective on the day and year first
written above.
COGEN TECHNOLOGIES LINDEN VENTURE, L.P.
By: Cogen Technologies Linden, Ltd.,
its general partner
By: JEDI Linden GP, L.L.C.,
its general partner
By: JEDI Linden NB, L.L.C.,
its managing member
By: East Coast Power L.L.C.,
its sole member
By:
-----------------------
Name:
Title:
JEDI LINDEN NB, L.L.C.
By: East Coast Power L.L.C.
By:
------------------------
Name:
Title:
