AGREEMENT FOR PURCHASE OF ELECTRIC POWER
BETWEEN
COGEN TECHNOLOGIES NJ, INC.
AND
JERSEY CENTRAL POWER & LIGHT COMPANY
AGREEMENT entered into this 29th day of October, 1985, by and between COGEN
TECHNOLOGIES NJ, INC., a Delaware Corporation ("Seller"), and JERSEY CENTRAL
POWER & LIGHT COMPANY, a New Jersey Corporation ("Buyer") (collectively referred
to as "Parties").
ARTICLE 1
RECITALS
WHEREAS, Seller plans to construct and operate a facility for the
cogeneration of steam and electricity located at Bayonne, New Jersey ("Seller's
Facility" or "Cogeneration Facility");
WHEREAS, Seller desires to sell all the net electrical output of Seller's
Facility to the Buyer;
WHEREAS, Buyer desires to purchase all the net electrical output of
Seller's Facility;
WHEREAS, the Parties desire to agree on certain terms and conditions
concerning the purchase of Electricity by Buyer from Seller; and
WHEREAS, the Parties desire to set forth in writing their respective rights
and obligations with respect to the matters set forth above;
NOW THEREFORE, in consideration of the mutual covenants contained herein
and other valuable consideration, receipt of which is hereby acknowledged, the
Parties agree as follows:
ARTICLE 2
DEFINITIONS
The following terms when used herein shall have the following meanings,
unless a different meaning shall be expressly stated or shall be apparent from
the context:
2.1 "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.
2.2 "Agreement" means this contract, including all amendments thereto that
may be made from time to time.
2.3 "Annual Period" means any one of a succession of consecutive twelve
(12) month periods, the first of which shall begin on the first day of the month
immediately following the month in which the Date of Initial Commercial
Operation occurs.
2.4 "Cogeneration Facility" or "Seller's Facility" or "the Facility" means
the waste heat boiler, gas and steam turbines, generators and all appurtenant
structures, equipment, including Seller's interconnection facilities, and real
property interests owned or leased and operated by Seller at International
Maytex Tank Terminals in Bayonne, New Jersey, for the purposes of generating
electricity and steam and other forms of useful thermal output and having a
nameplate capacity of approximately 125 Megawatts.
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2.5 "Commercial Operation" means the production of Electricity by Seller at
its Cogeneration Facility for sale upon the completion of testing of the
Cogeneration Facility.
2.6 "Date of Initial Commercial Operation" means 12:01 A.M. on the date
Seller designates in writing as the initial date of commercial operation of
Seller's Facility, which date shall not precede the Initial Delivery Date.
2.7 "Electrical Interconnection Facilities" or "Interconnection Facilities"
means all facilities required to be installed solely to interconnect and deliver
power from Seller's Facility to the system of the Wheeling Utility, including
but not limited to, the system protection equipment, connection, transformation,
switching, metering, safety and communications equipment, and any other system
additions or reinforcements that are reasonably required for interconnected
operation.
2.8 "Initial Delivery Date" means that day that Seller actually delivers or
is capable of and offers to deliver Electricity to Buyer, regardless of whether
Buyer accepts such delivery, which date shall precede the Date of Initial
Commercial Operation.
2.9 "Kwh" means kilowatt hours of Electricity.
2.10 "Net Electrical Energy" or "Electricity" means the gross amount of
Electricity in kilowatt hours generated by Seller's Facility less kwh consumed
for use by Seller's
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Facility and transformation and transmission losses, if any, to the Point of
Delivery.
2.11 "Off-Peak Period" means all hours not falling within an "On-Peak
Period."
2.12 "On-Peak Period" means all hours from 8:00 A.M. to 8:00 P.M.
prevailing time Monday through Friday, fifty-two (52) weeks per year.
2.13 "Operate" means to provide the engineering, purchasing, repair,
supervision, training, inspection, testing, protection, operation, use,
management, replacement and maintenance of and for the Facility in accordance
with applicable industry standards and Prudent Electrical Practices.
2.14 "Party" or "Parties" means the signatories to this Agreement and
their successors and assigns.
2.15 "Point(s) of Delivery" means any point or points where Buyer's System
is interconnected with the system of the Wheeling Utility.
2.16 "Point of Interconnection" means the point at which the Electrical
Interconnection Facilities of Seller connect with Public Service Electric and
Gas Company's interconnection facilities in Bayonne, New Jersey.
2.17 "Prudent Electrical Practices" means those practices, methods and
equipment as changed from time to time, used in prudent electrical engineering
and operations to operate electrical equipment lawfully and with safety,
dependability, and efficiency and that are in accordance with the National
Electrical Safety Code, the National Electrical
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Code or any other applicable Federal, State and Local codes.
2.18 "Scheduled Outage(s)" means an outage of the Facility that is
scheduled in advance for the purpose of performing periodic maintenance and
repairs on the Facility.
2.19 "Unscheduled Outage(s)" means an outage other than a scheduled
outage.
2.20 "Wheeling Utility" means Public Service Electric and Gas Company or
such other electric utility which connects with Seller's Facility and which
transmits Seller's Net Electrical Energy to Buyer at the Point(s) of Delivery.
ARTICLE 3
TERM
3.1 Duration of Agreement
A. This Agreement shall be effective upon approval by the Board of
Public Utilities of the State of New Jersey, pursuant to Article 16 and shall
continue in effect for a Base Term of twenty (20) Annual Periods beginning on
the Date of Initial Commercial Operation.
B. Notwithstanding the preceding paragraph, if the date of Initial
Commercial Operation has not occurred prior to December 31, 1987, Buyer may
thereafter terminate this Agreement by providing Seller forty-five (45) days'
written notice, unless prior to December 31, 1987, Seller has commenced a
program of continuous construction of the Facility and does
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not, of its own volition, subsequently discontinue such construction program.
3.2 Renewal of Agreement. This Agreement shall be automatically renewed for
a period of an additional ten (10) Annual Periods, commencing with the
expiration of the Base Term pursuant to Article 3.1, unless either Party elects
to terminate this Agreement at the expiration of the Base Term. Such termination
shall be valid only if the terminating Party provides written notice of its
intent to terminate to the other Party at least three (3) full years prior to
the expiration of the Base Term.
ARTICLE 4
TERMS OF SALE
4.1 General. Seller agrees to sell and deliver and Buyer agrees to purchase
and accept delivery of all of the Net Electrical Energy generated by Seller's
Facility subject to the terms of this Agreement.
4.2 Seller's Obligation. Commencing as of the Date of Initial Commercial
Operation, Seller shall:
A. Use all reasonable efforts to operate and maintain the Cogeneration
Facility in accordance with Prudent Electrical Practices and prudent business
judgment and so as not to cause disturbances on the Buyer's or the Wheeling
Utility's electric systems;
B. Provide Buyer estimates of Electricity production and schedules of
maintenance on a periodic basis for
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the purpose of coordinating the Facility's operations with those of Buyer's
system to the degree reasonably possible.
C. Provide Buyer prior to the first day of each month of each year its
estimate of the generation of Electricity at Seller's Facility for the twelve
(12) months beginning such month;
D. Provide Buyer prior to the first day of each month a schedule of
the generation of Electricity at Seller's Facility for such month;
E. Use all reasonable efforts to maximize delivery of Electricity
from Seller's Facility during On-Peak Periods; and
F. Use its best efforts to avoid Scheduled Outages during the months
of December, January, February, July, August and September.
4.3 Estimates and Schedules. The estimates and schedules provided by Seller
under Article 4.2(B), (C) and (D), above, shall be based on fuel availability,
Scheduled Outages, and other conditions anticipated at the time such schedules
and estimates are made but shall not be binding on Seller. Seller shall provide
a revised estimate or schedule as soon as practicable after it realizes that any
estimate or schedule provided to Buyer is no longer accurate for Buyer's
planning purposes.
4.4 Interruptions in Delivery. The Parties recognize
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that the unavailability of fuel, emergencies at Seller's Facility, emergencies
on the system of the Wheeling Utility, accidents, or other unusual conditions
may necessitate departure from scheduled generation or delivery of Net
Electrical Energy by Seller. The occurrence of any such condition, circumstances
or event shall not give rise or result in liability of Seller for damages during
or as a result of such departure. However, Seller shall use its best efforts to
promptly resume scheduled generation.
4.5 Request for Additional Delivery. If Buyer requests delivery of
Electricity in excess of that which Seller was otherwise intending to supply, to
the extent Seller is capable of delivering additional Electricity and such
delivery is consistent with other obligations to steam customers as determined
by Seller, Seller shall accommodate such request to the maximum extent
practicable. Buyer shall bear any additional costs or expenses incurred by
Seller.
4.6 Conditions Excusing Buyer's Obligation to Purchase Electricity. In
addition to conditions of Force Majeure which, as set out in Article 11, excuse
Buyer from its obligation to purchase Electricity from Seller, Buyer may refuse
to purchase Electricity from the Seller when:
A. Buyer is unable to back down its own generation sufficiently to
accept the Electricity from the Facility without jeopardizing the integrity of
Buyer's system. Buyer will give prompt notice of the potential for such refusal
to purchase;
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B. Buyer's distribution or transmission circuits are loaded to
capacity and further Electricity would cause an overload. Such refusal to
purchase may occur on an instantaneous basis; or
C. An emergency occurs on the Wheeling Utility system, such that
there would be no means of delivering the Electricity to the Buyer. Such refusal
to purchase may also occur on an instantaneous basis.
In the event that Buyer refuses to purchase Electricity from Seller
pursuant to this Article 4.6, Buyer shall be bound by the terms and conditions
set out in Articles 11.2 and 11.3 of this Agreement.
4.7 Conditions Requiring Curtailment or Interruptions of Delivery. Buyer
shall not be obligated to accept, and Buyer may require Seller to curtail,
interrupt or reduce deliveries of Electricity in order to construct, install,
maintain, repair, replace, remove, investigate or inspect any of its equipment
or any part of its system which would be placed in jeopardy by Seller's delivery
of Net Electrical Energy or if it determines that curtailment, interruption, or
reduction is necessary because of emergencies, forced outages, operating
conditions on its system, or as otherwise required by Prudent Electrical
Practices. Buyer will use its best efforts to avoid said interruptions,
curtailments or reductions and further to promptly resume acceptance of
Electricity from Seller and shall be bound by the terms and conditions set out
in Articles 11.2
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and 11.3 of this Agreement.
ARTICLE 5
PRICE
Buyer shall pay Seller in accordance with the terms of Appendix A -
"Schedule of Electricity Purchase Prices" for Electricity delivered to Buyer.
ARTICLE 6
XXXXXXXX AND RECORDS
6.1 Billing.
A. Seller shall prepare and send to Buyer a statement setting forth
the amount due, if any, for the preceding calendar month. The billing statement
shall also set forth the amount of hourly Electricity expressed in Kwh measured
at the Point of Interconnection during such month and a breakdown of the amount
of Electricity measured during On-Peak and Off-Peak Periods, respectively.
B. (1) Buyer shall, within thirty (30) days of the receipt of Seller's
statement, pay Seller for all amounts billed pursuant to Article 6.1A.
(2) If Buyer disputes a xxxx prepared by Seller pursuant to Article
6.1A, Buyer shall render payment for the undisputed portion of such xxxx, with
the disputed portion subject to arbitration pursuant to Article 13.
(3) If Buyer fails to pay all or a portion of the amounts billed
within the time stated in Article 6.1B(l),
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Buyer shall pay interest on the unpaid portion of the xxxx, which interest shall
accrue at the rate of one and one-half percent (1-1/2%) per month or one percent
(1%) above the Citibank Alternate Base Rate in effect at the time, whichever is
higher, from the due date until paid.
6.2 Records. Both Seller and Buyer shall keep a record of all invoices,
receipts, charts, computer printouts, punch cards or magnetic tapes related to
the volume or price of Electricity sales made under this Agreement. Such records
shall be made available for inspection by either Party upon reasonable notice.
All such materials shall be kept on record for a minimum of seven (7) years from
the date of their preparation or until the date of termination of this
Agreement, whichever date is later.
ARTICLE 7
MEASUREMENT AND METERING
7.1 Units of Measurement. For the purposes of billing under this Agreement,
Electricity shall be measured in Kilowatt hours (kwh).
7.2 Billing Measurements. For purposes of this Agreement, the place of
measurement will be located at the Electrical Interconnection Facilities between
Seller's Facility and the system of Wheeling Utility. For the purpose of billing
under this Agreement, Net Electrical Energy delivered to Buyer
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at the Point or Points of Delivery shall be the quantities measured at the Point
of Interconnection between Seller's Facility and the Wheeling Utility adjusted
for differences, if any, between the measured quantities and the quantities
credited to Buyer by the Wheeling Utility for deliveries from Seller as
determined from the Buyer's Daily Megawatt Hour (MWH) Log of System Operations.
7.3 Measuring Equipment and Stations.
A. Seller shall insure that the Wheeling Utility shall (1) own,
operate and maintain an Electricity measuring station and all measuring
equipment necessary to permit an accurate determination of the quantity of
Electricity delivered to Buyer; and (2) exercise reasonable care in the
maintenance and operation of metering equipment so as to assure to the maximum
extent practicable an accurate determination of such quantities. Except as
provided in Article 7.4, the Wheeling Utility's meters shall be used for
quantity measurements under this Agreement.
B. Seller may own, operate and maintain an Electricity measuring
station and all measuring equipment necessary to permit an accurate
determination of the quantity of Electricity delivered to Buyer, provided that
such equipment shall be operated and maintained in a manner that does not
interfere with the operation of the Wheeling Utility's measuring equipment.
C. Buyer may own, maintain and operate, at its sole expense,
Electricity check measuring equipment, provided that
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such equipment shall be operated and maintained in a manner that does not
interfere with the Seller's Facility or with the operation of the Wheeling
Utility's measuring equipment.
7.4 Adjustments. In the event one of the Wheeling Utility's meters is out
of service or registers inaccurately, measurement shall be determined by:
A. Using the registration of Seller's meters, if installed and
accurately registering; or
B. In the absence of an installed and accurately registering meter
belonging to Seller, using the registration of any check meter or meters of
Buyer, if installed and accurately registering; or
C. In the absence of an installed and accurately registering check
meter, making a calibration test or mathematical calculation, if the percentage
of error is ascertainable; or
D. In the absence of both an installed and accurately registering
check meter and an ascertainable percentage of error, estimating by reference to
quantities measured during periods under similar conditions when the Wheeling
Utility's meter was registering accurately.
7.5 Testing and Corrections.
A. The accuracy of the Wheeling Utility's measuring equipment shall be
tested and verified by Seller at reasonable intervals and, if requested, in
Buyer's presence. In the event that either Party notifies the other that it
desires a test of
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its own or of the other Party's measuring equipment or of the Wheeling Utility's
measuring equipment, the Parties shall cooperate to secure a prompt verification
of the accuracy of such equipment. For purposes of this Article, "testing"
refers to the testing of equipment relied upon for billing purposes.
B. Seller shall bear the cost of the testing of Wheeling Utility's
measuring equipment done at reasonable intervals. In the event that either Party
requests a testing of its own or of the other Party's or of the Wheeling
Utility's measuring equipment at other than a reasonable interval, the Party
requesting the testing shall bear the cost of the testing.
C. If, upon testing, any electrical measuring equipment is found to be
in error by not more than plus or minus two percent (2%), previous recordings of
such equipment shall be considered accurate in computing deliveries of
Electricity hereunder, but such equipment shall be promptly adjusted to record
correctly. If, upon testing, any electrical measuring equipment shall be found
to be inaccurate by an amount exceeding plus or minus two percent (2%), then
such equipment shall be promptly adjusted to record properly and any previous
recordings by such equipment shall be corrected to zero error. 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.
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7.6 Maintenance and Records.
A. Each Party shall have the right to be present whenever the other
Party reads, cleans, changes, repairs, inspects, tests, calibrates, or adjusts
the equipment used in measuring or checking the measurement of Electricity
delivered to Buyer. Each Party shall give timely notice to the other Party in
advance of taking any of such actions.
B. The records from the measuring or check measuring equipment shall
remain the property of the Seller or Buyer, respectively, but, upon request,
each Party will submit to the other its records and charts, together with
calculations therefrom, for inspection and verification, subject to return
within ten (10) days after receipt thereof.
ARTICLE 8
DELIVERY
Seller shall be responsible for making and keeping in force for the term of
this Agreement arrangements with the Wheeling Utility for the transmission of
Electricity generated by Seller's Facility to Points of Delivery on Buyer's
System. The cost of such delivery shall be borne by Seller. Buyer's obligation
to make payments to Seller under Article 6 of this Agreement is expressly
conditioned upon the existence and continuance of such arrangements.
ARTICLE 9
INTERCONNECTION FACILITIES
Seller shall, at its expense, make all arrangements
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necessary to interconnect Seller's Facility with the utility grid of the
Wheeling Utility providing delivery to the Points of Delivery on Buyer's System.
ARTICLE 10
ACCESS TO SELLER'S FACILITY
Properly accredited representatives of Buyer shall, at reasonable times,
with reasonable notice to Seller, have access to Seller's Facility to make
inspections and obtain information required in connection with this Agreement.
ARTICLE 11
FORCE MAJEURE
11.1 Definition. Except for the obligations of either party to make
payments under this Agreement, the Parties shall be excused from performing
their respective obligations hereunder and shall not be liable in damages or
otherwise, if and only to the extent that they are unable to so perform or are
prevented from performing by an event of Force Majeure, including, without
limitations, storm, flood, lightning, drought, earthquake, fire, explosion,
civil disturbance, labor dispute, act of God or the public enemy, action of a
court or public authority, or any other cause, whether or not similar thereto,
beyond the reasonable control of the affected Party.
11.2 Burden of Proof. The burden of proof as to whether a Force Majeure
event has occurred shall be upon the Party
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claiming that it shall be excused from performing its obligations hereunder due
to the occurrence of such an event.
11.3 Effect of Force Majeure. If either party shall rely on the occurrence
of an event or condition of Force Majeure described in Article 11.1, above, as a
basis for being excused from performance of its obligations under this
Agreement, then the party relying on the Force Majeure event or condition shall:
A. provide prompt notice to the other party of the occurrence of the
event or condition giving an estimation 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;
D. exercise all reasonable efforts to mitigate or limit damages to the
other party to the extent such action will not adversely affect its own
interests; and
E. provide prompt notice to the other party of the cessation of the
event or condition giving rise to its excusal from performance.
No obligations of either Party that arose prior to the occurrence of the event
of Force Majeure shall be excused as a result of such occurrence.
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ARTICLE 12
LIABILITY AND INDEMNIFICATION
12.1 Limitation on Liability for Damages, Losses or Expenses. Except for
breaches of this Agreement specified in Article 14.1A and Article 14.1D, neither
Buyer nor Seller, nor their respective officers, directors, agents, employees,
parent or affiliates, or their respective officers, directors, agents or
employees shall be liable to the other Party or its parent, subsidiaries,
affiliates, officers, directors, agents, employees, successors or assigns, for
any damages, losses or expenses connected with or resulting from breaches of
this Agreement, including, without limitation, claims in the nature of loss of
revenues, income or profits.
12.2 Indemnification.
A. Each Party shall indemnify the other Party, its officers, agents,
and employees against all loss, damages, expense, and liability to third persons
for injury to or death of persons or injury to property proximately caused by
the indemnifying Party's construction, ownership, operation, or maintenance of,
or by failure of, any of such Party's works or facilities used in connection
with his Agreement; provided, however, that neither Party, nor its officers,
agents, directors or employees shall be liable to the other Party, its
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agents, officers, directors or employees for incidental, special, indirect, or
consequential damages of any nature connected with or resulting from performance
of this Agreement. The indemnifying Party shall, on the other Party's request,
defend any suit asserting a claim covered by this indemnity. The indemnifying
Party shall pay all costs that may be incurred by the other Party in enforcing
this indemnity.
B. Neither Party, nor its directors, officers, employees, agents or
representatives, nor any independent contractor engaged in connection with the
performance of this Agreement, shall be deemed an employee of the other Party.
ARTICLE 13
ARBITRATION OF DISPUTES
In the event any controversy or claim shall arise between Seller and Buyer
regarding any matter under this Agreement, the parties shall undertake in good
faith to resolve the same. If the parties cannot agree, such failure to agree
shall be deemed a dispute and the dispute shall, by written notice to the other,
be referred to and settled by arbitration in accordance with the then existing
commercial arbitration rules of the American Arbitration Association. Such
determination shall include but not be limited to a decision (i) as to whether
the obligation(s) in dispute were met and (ii) as to what damages or remedies
are due Seller and Buyer. This Article 13, however, is not intended to
constitute a waiver by either party
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of the right to appeal to the courts the arbitrators' final determination.
Further, nothing contained herein shall in any way deprive either Party of its
right to obtain injunctive or other equitable relief. There will be three
arbitrators; one of which will be selected by Buyer, one of which will be
selected by Seller, and one of which will be selected by the American
Arbitration Association. The Parties shall equally share the cost of the
honorarium, if any. Both Parties agree to pay their own legal fees, including
stenographic costs and other hearing related expenses such as any service
charges required by the American Arbitration Association.
This Article 13 shall survive the termination or expiration of this
Agreement.
ARTICLE 14
BREACH OF CONTRACT
14.1 Definition. A breach of this Agreement shall be deemed to exist
upon the occurrance of any one or more of the following events:
A. Failure by Buyer to make payment of any amounts due Seller under this
Agreement, which failure continues for a period of thirty (30) days after notice
of such nonpayment;
B. Failure by Buyer or Seller to perform fully any other provision of
this Agreement, which failure continues for a period of thirty (30) days after
notice of such nonperformance;
C. The Seller fails to deliver any Electricity for 365 consecutive days
after the Date of Initial Commercial
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Operation, for any reason other than Force Majeure;
D. Seller sells any Electricity to any other Party at times when
Buyer can accept it;
E. If by order of a court of competent jurisdiction, a receiver or
liquidator or trustee of either Party or of any of the property of either Party
shall be appointed, and such receiver or liquidator or trustee shall not have
been discharged within a period of sixty (60) days; or if by decree of such a
court, a Party shall be adjudicated bankrupt or insolvent or any substantial
part of the property of such Party shall have been sequestered, and such decree
shall have continued undischarged and unstayed for a period of sixty (60) days
after the entry thereof; or if a petition to declare bankruptcy or to reorganize
a Party pursuant to any of the provisions of the Federal Bankruptcy Act, as it
now exists or as it may hereafter be amended, or pursuant to any other similar
state statute applicable to such Party, as now or hereafter in effect, shall be
filed against such Party and shall not be dismissed within sixty (60) days after
such filing; or
F. If either Party shall file a voluntary petition in bankruptcy
under any provision of any federal or state bankruptcy law or shall consent to
the filing of any bankruptcy or reorganization petition against it under any
similar law: or, without limitation of the generality of the foregoing, if a
Party shall file a petition or answer or consent seeking relief or assisting in
seeking relief in a proceeding under any of the provisions of the Federal
Bankruptcy Act, as it now exists or
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as it may hereafter be amended, or pursuant to any other similar state statute
applicable to such Party, as now or hereafter in effect, or an answer admitting
the material allegations of a petition filed against it in such a proceeding; or
if a Party shall make an assignment for the benefit of its creditors; or if a
Party shall admit in writing its inability to pay its debts generally as they
become due; or if a Party shall consent to the appointment of a receiver or
receivers, or trustee or trustees, or liquidator or liquidators of it or of all
or any part of its property.
14.2 Remedies for Breach. If either Party claims that the other Party has
breached this Agreement, as defined in Article 14.1, it shall provide such other
Party with notice thereof. If, within fifteen (15) days of the service of such
notice, such other Party disputes in writing that a breach by it has occurred,
the matter shall promptly be submitted to arbitration under Article 13 for
resolution. If there is no dispute that a breach has occurred, or if the
arbitrator determines that a breach has occurred, the non-breaching Party may
terminate this Agreement pursuant to Article 15.
14.3 Buyer's Rights and Obligations. Except as herein otherwise provided,
unless and until this Agreement has been terminated, Buyer shall not refuse to
make, suspend or delay any of the payments required under this Agreement as a
result of any breach or alleged breach by Seller.
14.4 Waiver of Breach. Either Party may waive breach by the other Party,
provided that no waiver by or on behalf of
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either the Buyer or Seller of any breach of any of the covenants, provisions,
conditions, restrictions or stipulations contained in this Agreement shall take
effect or be binding on the Buyer or Seller unless the waiver is reduced to
writing and executed by the Buyer or Seller, and any such waiver shall be deemed
to extend only to the particular breach waived and shall not limit or otherwise
affect any rights that the Buyer or Seller may have with respect to any other or
future breach.
ARTICLE 15
TERMINATION FOR BREACH
15.1 General. In the event either Party elects to terminate this Agreement
pursuant to Article 14.2, the terminating Party shall give written notice of
such election to the opposing Party. Upon the giving of such notice, the
terminating Party shall be excused and relieved of all obligations under this
Agreement and shall be entitled to pursue to remedies specified in Article 15.2.
15.2 Remedies Upon Termination. The Party terminating this Agreement may
elect to seek damages and other relief from the opposing Party resulting from a
breach of this Agreement pursuant to the arbitration procedures specified in
Article 13. The terminating Party shall give notice of such election to the
opposing Party within thirty (30) days of the date of notice given pursuant to
Article 15.1, and in such event the Parties agree to be bound by the provisions
of Article 13, even
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though this Agreement may otherwise be terminated and of no further force and
effect. Should the terminating Party not elect to proceed under Article 13, the
Parties shall be free to pursue all available legal and equitable remedies for
breach of this Agreement.
ARTICLE 16
REGULATORY APPROVAL
This Agreement does not become effective until the Board of Public
Utilities of the State of New Jersey issues an order approving this Agreement.
ARTICLE 17
NOTICE AND SERVICE
17.1 Notice. All notices, including communications and statements which are
required or permitted under the terms of this Agreement, shall be in writing,
except as otherwise provided.
17.2 Service.
A. Service of a notice may be accomplished by personal service,
telegram, or registered or certified mail.
B. 1. If a notice is sent by registered or certified mail, it shall be
deemed served within three (3) days, excluding Saturdays, Sundays or legal
holidays of the State of New Jersey, except as otherwise demonstrated by a
signed receipt.
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2. If a notice is served by telegram, it shall be deemed served
eighteen (18) hours after delivery to the telegram company.
C. Notices may be sent to the Parties at the following addresses:
1. Seller: Cogen Technologies NJ, Inc.
00000 Xxxxxxx Xxxxx Xxxxx
Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attn: Xx. Xxxxxx X. XxXxxx
President
2. Buyer: Director, Technical Services
Jersey Central Power & Light Company
Madison Avenue at Punch Bowl Road
Morristown, New Jersey 07960
ARTICLE 18
AMENDMENTS
No amendment or modification of the terms of this Agreement shall be
binding on either the Buyer or Seller unless reduced to writing and signed by
both Parties.
ARTICLE 19
SUCCESSORS AND ASSIGNS
19.1 Assignment by Seller. This Agreement shall inure to the benefit of and
bind the respective successors and assigns of the parties hereto, provided,
however, that no assignment by Seller or any successor or assignee of Seller of
its rights and obligations hereunder, shall be made or become effective
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without the prior written consent of Buyer in each case being obtained (such
consent not to be unreasonably withheld).
19.2 Assignment by Buyer. Buyer may only assign this Agreement and its
rights and obligations hereunder with the prior written consent of Seller in
each case being obtained (such consent not to be unreasonably withheld).
ARTICLE 20
CHOICE OF LAW
This Agreement shall be governed by and construed in accordance with the
laws of the State of New Jersey.
ARTICLE 21
SEVERABILITY AND RENEGOTIATION
21.1 Severability. Should Article 4 of this Agreement, or any substantial
portion thereof, for any reason be declared invalid or unenforceable by final
and unappealable order of any court or regulatory body having jurisdiction
thereafter, this Agreement shall be automatically terminated on the date such
order becomes final and unappealable. Should any other part of this Agreement,
for any reason, be declared invalid, such decision shall not affect the validity
of the remaining
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portions, which remaining portions shall remain in force and effect as if this
Agreement had been executed with the invalid portion thereof eliminated, and it
is hereby declared the intention of the parties hereto that they would have
executed the remaining portion of this Agreement without including therein any
such part, parts or portion which may for any reason be hereafter declared
invalid.
21.2 Renegotiation. Notwithstanding the provisions of Article 21.1, should
any term or provision of this Agreement other than Article 4 be found invalid by
any court or regulatory body having jurisdiction thereover, the Parties shall
immediately renegotiate such term or provision of the Agreement to eliminate
such invalidity.
ARTICLE 22
OTHER AGREEMENTS
This Agreement supersedes any and all oral or written agreements and
understandings heretofore made relating to the subject matters herein, and this
Agreement constitutes the entire agreement and understanding of the Parties
relating to the subject matters herein.
ARTICLE 23
CAPTIONS
All indices, titles, subject headings, section titles and similar items are
provided for the purpose of reference and
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convenience and are not intended to be inclusive, definitive or to affect the
meaning, content or scope of this Agreement.
ARTICLE 24
COUNTERPARTS
This Agreement may be executed in any number of counterparts, and each
executed counterpart shall have the same force and effect as an original
instrument.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
signed by their respective officers thereunto duly authorized as of the day and
year first set forth above.
ATTEST: COGEN TECHNOLOGIES NJ, INC.
/s/ [Signature appears here] By: /s/ Xxxxxx X. XxXxxx
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Asst. Secretary Xxxxxx X. XxXxxx, President
ATTEST: JERSEY CENTRAL POWER & LIGHT COMPANY
/s/ [Signature appears here] By: /s/ [Signature appears here]
------------------------------ -----------------------------------
Secretary
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