1
EXHIBIT 10.13
NOTE: This document is an electronic draft and should not be relied on in lieu
of the version that was executed by Cogen Technologies and Bayway Refining on
February 4, 1999. Any questions regarding the terms of the contracts should be
addressed by referral to the executed documents.
AGREEMENT
BETWEEN
COGEN TECHNOLOGIES LINDEN VENTURE, L.P.
(D/B/A COGEN TECHNOLOGIES LINDEN VENTURE, LIMITED PARTNERSHIP)
AND
BAYWAY REFINING COMPANY
FOR THE SALE OF STEAM
AS OF APRIL 8, 1993
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TABLE OF CONTENTS
Page
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RECITALS.....................................................................1
ARTICLE 1
DEFINITIONS
1.1 "Affiliate"........................................................3
1.2 "Agreement"........................................................3
1.3 "Annual Period"....................................................3
1.4 "Base Term"........................................................3
1.5 "Bayway Refinery"..................................................3
1.6 "BRC's External Steam Requirements"................................4
1.7 "BRC's Property"...................................................4
1.8 "Btu"..............................................................4
1.9 "Cogeneration Facility" ...........................................4
1.10 "Demised Premises".................................................4
1.11 "Exxon"............................................................4
1.12 "Exxon's Complex"..................................................4
1.13 "Financier"........................................................5
1.14 "Force Majeure"....................................................5
1.15 "Governmental Authorizations"......................................6
1.16 "Ground Lease".....................................................6
1.17 "Ground Lease Agreement"...........................................6
1.18 "Improvements Removal Period"......................................6
1.19 "K lbs."...........................................................6
1.20 "Owner Trust"......................................................6
1.21 "Party"............................................................7
1.22 "Points of Delivery of Steam"......................................7
1.22A "Protective Relay Test"............................................7
1.23 "psig".............................................................7
1.24 "Steam"............................................................7
1.25 "Steam Interconnection Facilities".................................7
1.26 "Weighted Average Cost of Gas".....................................7
ARTICLE 2
TERM
2.1 Base Term of Agreement.............................................8
2.2 Renewal of Agreement...............................................8
2.3 Cut-Off Date.......................................................9
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ARTICLE 3
SALE OF STEAM
3.1 General.................................................................9
3.2 Reduced Deliveries.....................................................12
3.3 Routine Scheduling.....................................................14
3.4 Quality of Steam.......................................................14
3.5 Points of Delivery.....................................................15
ARTICLE 4
COST OF STEAM
4.1 Monthly Steam Charge...................................................16
4.2 Annual Steam Adjustment................................................16
4.3 Cumulative Adjustments.................................................16
ARTICLE 5
OTHER RIGHTS AND OBLIGATIONS OF PARTIES
5.1 Rights and Obligations of Cogen........................................16
5.2 Rights and Obligations of BRC..........................................17
ARTICLE 6
MEASUREMENT AND METERING
6.1 Units of Measurement...................................................20
6.2 Cogen's Measuring Equipment............................................21
6.3 BRC's Measuring Equipment..............................................21
6.4 Alternative Means of Measurement.......................................21
6.5 Testing and Corrections................................................22
A. Testing.......................................................22
B. Costs of Testing..............................................22
C. Corrections of Measuring Equipment............................22
6.6 Maintenance............................................................23
6.7 Measurement/Notice.....................................................23
6.8 Measurement/Notice of Steam delivered
to Exxon by BRC.....................................................24
ARTICLE 7
BILLING AND RECORDS
7.1 Billing................................................................24
A. Monthly Xxxx to BRC...........................................24
B. Annual Adjustments............................................25
C. Other Adjustments.............................................25
7.2 Payment and Penalties..................................................26
A. Payment.......................................................26
B. Interest......................................................26
7.3 Disputes...............................................................26
7.4 Records................................................................27
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ARTICLE 8
TAXES.......................................................................27
ARTICLE 9
AUTHORITY
9.1 Authority of BRC.......................................................27
9.2 Authority of Cogen.....................................................28
ARTICLE 10
FORCE MAJEURE
10.1 Definition............................................................29
10.2 Burden of Proof.......................................................29
10.3 Condition.............................................................29
10.4 Labor Disputes........................................................30
10.5 Termination for Force Majeure.........................................30
10.6 Cogen's Right to Temporary Cure.......................................31
ARTICLE 11
BREACH OF CONTRACT AND TERMINATION
11.1 BRC's Right to Terminate..............................................33
11.2 Cogen's Right to Terminate............................................34
11.3 Automatic Termination.................................................36
11.4 Notice to the Financier, Lenders and Mortgagees.......................36
11.5 Effective Date of Termination.........................................38
11.6 Transition............................................................40
ARTICLE 12
LIABILITY
12.1 Limitation on Liability for Damages...................................41
12.2 Damages...............................................................43
12.3 Specific Performance..................................................43
ARTICLE 13
NONWAIVER...................................................................44
ARTICLE 14
NOTICE AND SERVICE
14.1 Notice................................................................44
14.2 Date of Service.......................................................45
A. Mail..........................................................45
B. Telegram......................................................45
C. Personal Service..............................................45
14.3 Addresses.............................................................45
X. Xxxxx.........................................................45
B. BRC...........................................................45
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ARTICLE 15
AMENDMENTS..................................................................46
ARTICLE 16
SUCCESSORS AND ASSIGNS
16.1 Assignment by BRC.....................................................46
16.2 Assignment by Cogen...................................................47
16.3 Continuing Obligations................................................47
16.4 Ground Lease Agreement................................................48
16.5 Transfers of Part of the Bayway Refinery..............................48
16.6 Selected Transfers....................................................51
16.7 Rights of the Financier and Other Lenders.............................51
16.8 Status Certificates...................................................57
ARTICLE 17
CHOICE OF LAW...............................................................58
ARTICLE 18
RENEGOTIATION...............................................................58
ARTICLE 19
CONSENT NOT TO BE UNREASONABLY WITHHELD.....................................58
ARTICLE 20
OTHER AGREEMENTS............................................................59
ARTICLE 21
CAPTIONS....................................................................59
ARTICLE 22
COUNTERPARTS................................................................59
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EXHIBIT A
PART 1: CALCULATION OF MONTHLY STEAM CHARGE...............................61
PART 2: CALCULATION OF ANNUAL STEAM ADJUSTMENT............................62
EXHIBIT B
DESCRIPTION OF POINTS OF DELIVERY OF STEAM..................................64
EXHIBIT C
PRO FORMA MONTHLY INVOICE...................................................65
EXHIBIT D
EXISTING PROCESS STEAM SOURCES AT THE BAYWAY REFINERY.......................66
EXHIBIT E
EXAMPLE OF PRO RATA ALLOCATION OF STEAM.....................................68
EXHIBIT F
PORTIONS OF THE BAYWAY REFINERY NOT SUBJECT TO
PRO RATA ALLOCATION.........................................................70
EXHIBIT G-1
ASSUMPTION AGREEMENT........................................................71
EXHIBIT G-2
ASSUMPTION AGREEMENT........................................................73
EXHIBIT G-3
ASSUMPTION AGREEMENT........................................................75
EXHIBIT H
RECOGNITION AGREEMENT.......................................................78
EXHIBIT I
CONSENT TO ASSIGNMENT.......................................................79
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AGREEMENT
BETWEEN
COGEN TECHNOLOGIES LINDEN VENTURE, L.P.
(d/b/a COGEN TECHNOLOGIES LINDEN VENTURE, LIMITED PARTNERSHIP)
AND
BAYWAY REFINING COMPANY
FOR THE SALE OF STEAM
This AGREEMENT is made and entered into effective as of April 8, 1993,
by and between Cogen Technologies Linden Venture, L.P., doing business in New
Jersey as Cogen Technologies Linden Venture, Limited Partnership ("Cogen"), a
Delaware limited partnership, and Bayway Refining Company ("BRC"), a Delaware
corporation (collectively "Parties").
RECITALS
WHEREAS, RCM Holdings, Inc. (previously known as Cogen Technologies,
Inc.), has entered into a Power Purchase Agreement dated April 14, 1989 ("Power
Purchase Agreement") with Consolidated Edison Company of New York, Inc.
("Consolidated Edison"), under which RCM Holdings, Inc. sells to Consolidated
Edison electricity from a cogeneration facility ("Cogeneration Facility")
located in Linden, New Jersey. The Power Purchase Agreement was approved by the
Public Service Commission of the State of New York and became effective in
September, 1989 and has been assigned to Cogen. The Cogeneration Facility is
contemplated, but not required, to be a qualifying cogeneration facility as
defined in Section 3(18) of the Federal Power Act and the regulations
thereunder. Cogen and Consolidated Edison contemplate that the Power Purchase
Agreement will remain in
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force for twenty-five (25) years from May 1, 1992 and possibly for two (2)
additional five (5) year renewal terms;
WHEREAS, BRC owns, operates and maintains the "Bayway Refinery" (as
defined in Article 1.5 below) in Linden, New Jersey, which utilizes steam for
industrial purposes;
WHEREAS, Cogen owns, operates, and maintains the Cogeneration Facility
on part of the land on which the Bayway Refinery is located and leases from BRC
the "Demised Premises" (as defined in Article 1.10 below) upon which the
Cogeneration Facility is located. BRC has leased the Demised Premises to Cogen
and has granted Cogen such easements and rights-of-way as are reasonably
necessary for the operation, maintenance, repair, replacement, and removal of
the Cogeneration Facility and related improvements in partial consideration of
Cogen's entering into this Agreement for the sale of steam to BRC from the
Cogeneration Facility for use at the Bayway Refinery. The parties to this
Agreement and the "Ground Lease Agreement" (as defined in Article 1.15 below)
acknowledge and agree that both such agreements are interdependent, as provided
in both such agreements;
WHEREAS, the sale of steam to BRC from the Cogeneration Facility for
use at the Bayway Refinery under this Agreement is intended to replace, in
part, Cogen's sale of such steam to Exxon Corporation under a separate
agreement between Cogen and Exxon Corporation, and reflects BRC's acquisition
from Exxon of the Bayway Refinery; and
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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 and sufficiency of which are
hereby acknowledged, the Parties hereby agree as follows:
ARTICLE 1
DEFINITIONS
The following terms when used herein shall have the following
meanings:
1.1 "Affiliate" means a corporation or other entity that directly or
indirectly, through one or more intermediaries, controls or is controlled by,
or is under common control with, another corporation or other entity.
1.2 "Agreement" means this contract, including all exhibits and
amendments thereto that may be made from time to time.
1.3 "Annual Period" means any one of a succession of consecutive
twelve (12) month periods, the first of which shall begin on May 1, 1992.
1.4 "Base Term" of this Agreement has the meaning set forth in Article
2.1.
1.5 "Bayway Refinery" means BRC's Bayway Refinery and Marketing
Terminal, both located at Linden, New Jersey.
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1.6 "BRC's External Steam Requirements" means the quantity of steam
used by BRC to operate the Bayway Refinery over and above those quantities
provided by BRC's internal sources identified in Exhibit D hereto.
1.7 "BRC's Property" means the land upon which the Bayway Refinery is
located, as described more particularly in Article 1 and Exhibit A of the
Ground Lease Agreement.
1.8 "Btu" means British Thermal Unit.
1.9 "Cogeneration Facility" means the cogeneration facility owned by
Cogen and located upon the Demised Premises.
1.10 "Demised Premises" means those two parcels of land which total
approximately 12.36 acres on the site of the Bayway Refinery and which were
leased to Cogen pursuant to the Ground Lease Agreement, as described more
particularly in Article 1 and Exhibit B of the Ground Lease Agreement.
1.11 "Exxon" means the Exxon Corporation as well as its successors and
assigns. For purposes of the agreement between Cogen Technologies Linden
Venture, L.P. (d/b/a Cogen Technologies Linden Venture, Limited Partnership)
and Exxon Corporation for the Sale of Steam dated August 1, 1990, INFINEUM USA
L.P. became assignee of Exxon as of January 1, 1999.
1.12 "Exxon's Complex" means Exxon Chemical Company's Chemical Plant
(which plant has been transferred to INFINEUM USA L.P. as of January 1, 1999);
Exxon Company, U.S.A., Turbo Oil; and Exxon's Technology Center (which
Technology Center has been transferred to INFINEUM USA L.P. as of January 1,
1999) all
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located at Linden, New Jersey, and all of which are facilities owned by Exxon
or an affiliate thereof.
1.13 "Financier" initially means the Owner Trust, and may also mean
any other entity subsequently extending credit to Cogen for the construction,
operation, maintenance, repair, replacement, or removal of the Cogeneration
Facility and other "Improvements" (as defined in Article 1 of the Ground Lease
Agreement), or any entity subsequently providing funds for the refinancing or
taking-out of such loans, and the nominees or designees of any such entities;
provided that, at no time will BRC be obligated to recognize more than one such
entity as the Financier to whom duties are owed, or rights are granted, under
this Agreement and the Ground Lease Agreement. BRC will recognize as the
Financier for purposes of this Agreement and the Ground Lease Agreement (i) the
Owner Trust, until such time as the Owner Trust or the Lenders' Agent (as set
forth in the recognition agreement executed and delivered to the Owner Trust by
BRC) notifies BRC in writing that such other party should be considered to be
the Financier, and (ii) thereafter, the designated party, until such time as
such designated party notifies BRC in writing that Cogen has the right to
designate another entity as the Financier, and (iii) thereafter, such other
entity as Cogen may designate in writing from time to time.
1.14 "Force Majeure" has the meaning set forth in Article 10.1.
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1.15 "Governmental Authorizations" means any and all licenses,
permits, certificates and other authorizations required by applicable federal,
state, or local law.
1.16 "Ground Lease" means the creation of a leasehold estate in the
Demised Premises, as set forth in Article 1 of the Ground Lease Agreement.
1.17 "Ground Lease Agreement" means the Ground Lease Agreement dated
August 1, 1990, between Cogen and Exxon for the lease of the Demised Premises
to Cogen, including all amendments thereto that may be made from time to time
and as amended by letter agreement dated September 27, 1991, and further
amended by Amendment to Ground Lease Agreement dated July 31, 1992 and
subsequently amended by the Second Amendment to Ground Lease Agreement dated
April 13, 1994, which Ground Lease Agreement has been assigned by Exxon to BRC.
1.18 "Improvements Removal Period" means that part of the term of the
Ground Lease for the removal of certain "Improvements" (as defined in Article 1
of the Ground Lease Agreement), including the Cogeneration Facility, as set
forth in Article 1 of the Ground Lease Agreement.
1.19 "K lbs." means 1,000 pounds of steam mass.
1.20 "Owner Trust" means the trust established pursuant to the Trust
Agreement dated as of December 28, 1990, between State Street Bank and Trust
Company of Connecticut, National Association, and Linden Owner Partnership, as
the same may be amended from time to time.
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1.21 "Party" means Cogen or BRC, as the case may be, and its permitted
successors and assigns.
1.22 "Points of Delivery of Steam" means the points where Cogen's
steam supply system connects to BRC's steam pipeline at BRC's existing steam
headers, as indicated on Exhibit B.
1.22A "Protective Relay Test" means Consolidated Edison's or its
successor's functional testing of protective relays of the Cogeneration
Facility the duration of which begins at the time the interconnect is
de-energized and ends at the time the interconnect is returned to full service
and which typically is performed once every eighteen (18) to twenty-four (24)
months.
1.23 "psig" means pound per square inch gauge.
1.24 "Steam" means steam delivered to BRC by Cogen, as measured at
Cogen's meters at the Points of Delivery of Steam.
1.25 "Steam Interconnection Facilities" means Cogen's facilities
required for the delivery of Steam to the Points of Delivery of Steam,
including service stop valves, meter stop valves, primary and secondary service
pressure reducing valves, meter supports, protection devices, meters, pipe
systems, pipelines, venting, and other facilities required to connect the
Cogeneration Facility to the Points of Delivery of Steam in order to effectuate
the purposes of this Agreement.
1.26 "Weighted Average Cost of Gas" means the average cost of natural
gas of Consolidated Edison and Public Service Electric and Gas Company (or
their successors) based upon volumes of natural gas purchased by such utilities
during the month in question as set forth in Consolidated Edison's Operating
and
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Financial Report filed monthly with the Public Service Commission of the State
of New York, and as set forth in Public Service Electric and Gas Company's
Commodity Charge Applicable to Cogeneration Interruptible Service filed monthly
with the State of New Jersey Board of Public Utilities.
ARTICLE 2
TERM
2.1 Base Term of Agreement. This Agreement shall be effective as of
April 8, 1993 and will continue for a period of twenty-four (24) Annual Periods
(the "Base Term"), unless sooner terminated in accordance with the terms of
this Agreement.
2.2 Renewal of Agreement. This Agreement shall be automatically
renewed for two (2) periods of five (5) additional Annual Periods each,
commencing with the expiration of the Base Term pursuant to Article 2.1, unless
either Party elects to terminate this Agreement at the expiration of the Base
Term or at the expiration of the first five (5) year renewal term. Termination
by BRC shall be valid only if BRC provides Cogen written notice of its intent
to terminate at least five and one-half (5 1/2) years prior to the expiration
of the Base Term or at least five and one-half (5 1/2) years prior to the
expiration of the first five (5) year renewal term, as the case may be.
Termination by Cogen shall be valid only if Cogen provides BRC written notice
of its intent to terminate at least four (4) years prior to the expiration of
the Base Term or at least four (4)
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years prior to the expiration of the first five (5) year renewal term, as the
case may be.
2.3 Cut-Off Date. In no event shall this Agreement extend beyond
January 1, 2033, without the written consent of both Parties.
ARTICLE 3
SALE OF STEAM
3.1 General.
A. Commencing on April 8, 1993, Cogen shall sell and deliver to
BRC Steam at the Bayway Refinery up to a maximum rate of 819 K lbs. per hour
for the months October through and including May, and up to a maximum rate of
491 K lbs. per hour for the months June through and including September. This
delivery of Steam shall be uninterrupted. In the event of an upset or other
emergency at the Bayway Refinery during the months June through and including
September, Cogen shall sell and deliver to BRC Steam at the Bayway Refinery up
to a maximum rate of 819 K lbs. per hour for the duration of such upset or
emergency. In addition, if at any time BRC requests Steam at the Bayway
Refinery in excess of 819 K lbs. per hour during the months October through and
including May, or in excess of 491 K lbs. per hour during the months June
through and including September, Cogen shall meet such request to the extent
Cogen is able to do so, provided that Cogen is not materially adversely
affected under the Power Purchase Agreement or Cogen's other
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agreements to sell steam to other steam users. During the months of June
through and including September, BRC's request under the preceding sentence, up
to a maximum total consumption of 691K lbs. per hour, shall take priority over
any other request for Steam by any other Steam user, except the amounts up to
109K lbs. per hour supplied to Exxon under any steam agreement in effect at
that time.
B. BRC shall purchase and use from Cogen at least 717,444 K lbs.
of BRC's External Steam Requirements in each Annual Period. BRC may at any time
take steam from the sources described in Exhibit D and, subject to BRC's
obligations set forth in the preceding sentence, from any other source upon
reasonable notice to Cogen.
C. BRC's External Steam Requirements at the Bayway Refinery are
presently estimated, but not guaranteed, to be 3,816,540 K lbs. per Annual
Period. Cogen recognizes that BRC may reduce, terminate, or change the nature
of its operations at the Bayway Refinery and that BRC's External Steam
Requirements might be reduced below 717,444 K lbs. per Annual Period or
eliminated as a result. However, if BRC elects to cease all or substantially
all industrial operations at the Bayway Refinery (other than because of Force
Majeure) with the results described in Article 11.2D, Cogen may elect to
terminate this Agreement pursuant to Article 11.2D.
D. If BRC, during the term of this Agreement, decides to make
substantial changes in the nature of its industrial operations at the Bayway
Refinery (other than because of Force
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Majeure) with the probable result that BRC's maximum rate of Steam taken from
Cogen under Articles 3.1A and 3.1B would permanently fall below both 573 K lbs.
per hour for the months October through and including May and 328 K lbs. per
hour for the months June through and including September, BRC shall give Cogen
prompt written notice of such decision. In that event, if Cogen so requests,
BRC and Cogen shall work together to revise Cogen's obligations as defined in
Article 3.1A, so that Cogen shall continue to be obligated to provide to BRC
the Steam which BRC needs for its changed operations and so that Cogen shall
have the opportunity to seek and obtain other customers for the volume of BRC's
External Steam Requirements no longer needed by BRC.
E. If BRC is affected by Force Majeure which causes BRC's External
Steam Requirements from Cogen under this Agreement to fall below 358,722 K lbs.
of Steam for any consecutive six (6) month period (an average of 82 K lbs. of
Steam per hour on a six (6) month basis), and if Cogen, with BRC's Steam take
from Cogen in combination with the steam take from Cogen's other steam
customers, would be unable, in Cogen's reasonable judgment, to maintain the
status of the Cogeneration Facility as a "qualifying cogeneration facility" (as
defined in Section 3(18) of the Federal Power Act and the regulations
thereunder) for at least five (5) gas turbines, Cogen, by prompt written notice
to BRC, may reduce its obligation in Article 3.1A to provide 819 K lbs. of
Steam per hour to 655 K lbs. of Steam per hour. The purpose of this reduction
in Cogen's obligation in Article 3.1A would be to give Cogen a reasonable
opportunity to maintain the status of
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the Cogeneration Facility as a "qualifying cogeneration facility" by obtaining
other customers for up to 164 K lbs. per hour of its steam from October through
and including May and, during upsets or emergencies, from June through and
including September. If Cogen's obligation to sell and deliver Steam to BRC is
reduced as described in this Article 3.1E, and if subsequently the Force
Majeure affecting BRC abates, BRC may request Cogen to reinstate the original
rate of 819 K lbs. of Steam per hour under Article 3.1X. Xxxxx'x obligation
under this Article 3.1E shall revert to the original rate of 819 K lbs. of
Steam per hour under Article 3.1A twenty-four (24) months following Cogen's
receipt of a written notice from BRC requesting such reversion, unless the
Parties mutually agree upon an earlier date for such reversion.
3.2 Reduced Deliveries.
A. Should Cogen be unable to deliver and sell the quantity of
Steam required to be delivered and sold to BRC under Article 3.1A due to a
reduction in the amount of steam being generated by the Cogeneration Facility
due to Force Majeure, BRC shall have the right to a pro rata allocation of
steam being generated, delivered and sold from the Cogeneration Facility in
relation to Cogen's delivery of steam to Exxon and American Cyanamid Company
("Cyanamid") pursuant to an existing agreement between Cogen and Exxon for the
sale of steam, and an agreement between Cogen and Cyanamid for the sale of
steam to be executed at a future date. Such pro rata allocation shall be based
on BRC's, Exxon's, and Cyanamid's previous twenty-four (24) hours of demand for
steam from the Cogeneration Facility at the time of
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reduction of the amount of steam being generated and available for delivery
and sale.
B. Should Cogen fail for any reason to deliver to BRC the Steam
that Cogen is required to deliver to BRC under Article 3.1, BRC shall have the
right immediately to obtain, and shall not be deemed in breach of this
Agreement if it obtains, replacement steam from any other source (within or
external to the Bayway Refinery) for the duration of Cogen's failure to provide
the Steam. If Cogen does fail for any reason (other than because of Force
Majeure) to deliver to BRC the Steam that Cogen is required to deliver to BRC
under this Article 3, and if BRC obtains replacement steam from any other
source, Cogen shall reimburse BRC for any difference between BRC's reasonable
cost for the replacement of such steam and the cost BRC would have incurred in
buying Steam under Articles 3 and 4. To the extent that Cogen's failure to
deliver Steam is excused by Force Majeure, Cogen shall owe BRC no money for any
such difference in cost. The cost which BRC would have incurred in buying Steam
under Articles 3 and 4 shall be calculated as provided in Article 10.6B.
C. During any Protective Relay Test, provided it is operationally
possible to do so, Cogen shall sell and deliver up to 500 K lbs. per hour of
Steam for BRC's Steam requirements by operating three turbines of the
Cogeneration Facility in a full speed/no-load condition, unless mutually agreed
otherwise by both parties. The price for such Steam up to 500 K lbs. per hour
shall be in accordance with the pricing terms of this Agreement.
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In addition, as requested by BRC, Cogen shall sell and deliver additional steam
to BRC above the 500 K lbs. per hour described in the immediately preceding
sentence, but only to the extent Cogen is reasonably able to supply such
volumes. The price for such additional Steam above 500 K lbs. per hour shall be
subject to the mutual agreement of the parties.
3.3 Routine Scheduling. Commencing on April 8, 1993, BRC shall, at any
time upon Cogen's request, give Cogen its best estimate of its expected
requirements for Steam from the Cogeneration Facility hereunder (including the
hourly delivery rates) in such detail as follows:
A. For each calendar year, at least by December 1 of the preceding
calendar year on a monthly basis; and
B. For each month, at least ten (10) days prior to the end of the
preceding month, on a weekly basis.
Notwithstanding the foregoing, BRC shall advise Cogen of any significant
changes in its expected requirements for Steam from the Cogeneration Facility
as soon as reasonably practicable.
3.4 Quality of Steam. All Steam shall meet either of the following
specifications: for high pressure level not less than 700 psig nor more than
740 psig at 700(degree)-740(degree)F, and for low pressure level not less than
130 psig nor more than 150 psig at 440(degree)-480(degree)F, and for both the
high pressure level and the low pressure level, total dissolved solids and the
oxygen present shall not exceed the amounts recommended by standard industrial
practices for 1500 psig steam systems. Cogen and BRC acknowledge that either
Party may desire temporary changes in the temperature
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or the pressure of the Steam from time to time. If either Party requests such a
change, the Party to which the request is made shall not unreasonably deny such
request; provided that Cogen shall not be required to take any action by which
it would be materially adversely affected under the Power Purchase Agreement or
Cogen's other agreements to sell steam to other steam users. At BRC's option
and subject to the limits of Article 3.1A, BRC shall specify and Cogen shall
deliver to BRC the amounts of high pressure and low pressure Steam that BRC
desires; provided, however, that Cogen shall not be obligated to supply BRC
with more than 581 K lbs. per hour of Steam at the high pressure level at any
time (except to the extent that Cogen is able to provide more than 581 K lbs.
per hour at the high pressure level, Cogen shall do so, provided that Cogen is
not materially adversely affected under the Power Purchase Agreement or Cogen's
other agreements to sell steam to other steam users) or 374 K lbs. per hour of
Steam at the low pressure level at any time (except to the extent that Cogen is
able to provide more than 374 K lbs. per hour at the low pressure level, Cogen
shall do so, provided that Cogen is not materially adversely affected under the
Power Purchase Agreement or Cogen's other agreements to sell steam to other
steam users).
3.5 Points of Delivery. Cogen shall pay for the installation and
maintenance of all Steam Interconnection Facilities.
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ARTICLE 4
COST OF STEAM
4.1 Monthly Steam Charge. BRC shall pay to Cogen the monthly steam
charge (MS) calculated pursuant to Part 1 of Exhibit A.
4.2 Annual Steam Adjustment. Subject to Article 4.3, Cogen shall
calculate and credit to BRC the annual steam adjustment (ASA) according to Part
2 of Exhibit A. This adjustment reflects differences in Steam charges to BRC
when quantities delivered to BRC are calculated on an annualized basis versus a
monthly basis.
4.3 Cumulative Adjustments. The cumulative adjustments pursuant to
Article 4.2 in any Annual Period shall not exceed the cumulative monthly steam
charge under Article 4.1 in any Annual Period.
ARTICLE 5
OTHER RIGHTS AND OBLIGATIONS OF PARTIES
5.1 Rights and Obligations of Cogen. In addition to the rights and
obligations of Cogen specified in Article 3 and Article 4, Cogen shall:
A. Have the right to sell any and all electric power generated at
the Cogeneration Facility in excess of the amounts Cogen is obligated
to sell to Consolidated
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Edison under the Power Purchase Agreement, to any third person under
such terms and conditions as Cogen, in its sole discretion, determines
to be appropriate.
B. Have the right to sell any and all steam produced at the
Cogeneration Facility that is first offered to but not purchased by
BRC under Article 3 to any other person on such terms and conditions
as Cogen and such person shall agree, without interference by BRC,
except that such sale shall not be conducted in such manner as to
interfere with Cogen's provision of Steam under Article 3 or with
BRC's reasonable and normal operation of the Bayway Refinery.
C. Design, construct, operate, and maintain the Cogeneration
Facility to meet reliability and safety standards consistent with
steam supply to a major industrial complex and will work with BRC so
that such reliability and safety standards are adequately addressed.
D. Have the right to receive, for Steam accounting purposes, meter
recordings or other transfer documentation for BRC's steam delivery to
Exxon.
5.2 Rights and Obligations of BRC. In addition to the
rights and obligations of BRC specified in Article 3 and
Article 4, BRC shall:
A. Receive Cogen's delivery of Steam under this Agreement in a
manner consistent with safety standards generally applicable to
receipt and use of steam at a major industrial complex.
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B. Have the right to review and approve any "Improvements" (as
defined in Article 1 of the Ground Lease Agreement) installed after
the date hereof within any easements granted by BRC to Cogen under the
Ground Lease Agreement from the perspective of maintenance access,
emergency access and impact on existing or future equipment and
improvements of BRC, which approval shall not be unreasonably
withheld.
C. Have the right to sell and deliver Steam purchased from Cogen
to any person who owns or operates facilities within, or closely
proximate to, the Bayway Refinery; provided, however, that BRC shall
first provide Cogen with a declaratory order of the New Jersey Board
of Public Utilities or other official assurances satisfactory to Cogen
that such sale and delivery would not cause or would not be likely to
cause the Cogeneration Facility to cease to be a "qualifying
cogeneration facility" as defined in Section 3(18) of the Federal
Power Act and the regulations thereunder, and that such sale and
delivery would not result in Cogen, or any person having an ownership
interest in Cogen, or the Cogeneration Facility, or any person
operating the Cogeneration Facility, or any Affiliate of Cogen or any
such persons, becoming subject to or affected by regulation under the
Federal Power Act, the Public Utility Holding Company Act of 1935, or
other federal or state laws or regulations respecting the regulation
of utilities, except reporting or safety requirements that are
non-burdensome in
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nature. In the event that the State of New Jersey by law, regulation
or order, does not subject the sale or delivery of steam to public
utility-type regulation (other than reporting or safety requirements
that are non-burdensome in nature), such a law, regulation or order
shall constitute an official assurance satisfactory to Cogen, for
purposes of this clause (C) of this Section 5.2; provided, that such
proposed sale or delivery of Steam meets all requirements specified in
such law, regulation or order. To the extent additional information is
reasonably required to determine if such sale or delivery of Steam
meets the requirements specified in such law, regulation or order,
Cogen may request such further information from BRC.
D. Receive at the Points of Delivery of Steam Cogen's delivery of
Steam to Exxon and distribute such Steam to Exxon's Complex located
proximate to the Bayway Refinery in accordance with the provisions of
the Joint Services Contract Between BRC and Exxon dated as of April 2,
1993 as may be amended, modified or terminated; provided however that
such receipt and distribution shall not result in BRC or any person or
entity having an ownership interest in BRC or the Bayway Refinery, or
operating the Bayway Refinery, or any Affiliate of BRC or any such
persons, becoming subject to or affected by regulation under the
Federal Power Act, the Public Utility Holding Company Act of 1935 or
other federal or state laws or regulations respecting the regulation
of utilities, except for reporting
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or safety requirements which are non-burdensome in nature. In the
event the laws or regulations described in this paragraph 5.2D result
in BRC ceasing to deliver Steam to Exxon, BRC agrees to work with
Exxon on a mutually cooperative basis to develop an alternative means
for Exxon to receive Steam from Cogen. BRC agrees that in the event
the laws or regulations described in this paragraph 5.2D result in BRC
ceasing to deliver Cogen's Steam to Exxon and an alternative means for
Exxon to receive Steam from Cogen is not reasonably available, BRC
shall increase the External Steam Requirements in each Annual Period
provided for under paragraph 3.1B to 876,000 K lbs. In the event any
claim is brought by Exxon against BRC or an Affiliate of BRC relating
to BRC's failure to deliver Steam to Exxon, BRC shall not be entitled
to seek relief or a claim against Cogen relating to such failure to
deliver such Steam to Exxon. In the event any claim is brought by
Exxon against Cogen or an Affiliate of Cogen relating to Cogen's
failure to sell Steam or to make Steam available for delivery to the
Points of Delivery of Steam for Exxon ("Exxon's Claim"), Cogen shall
not be entitled to hold BRC liable for Exxon's Claim.
ARTICLE 6
MEASUREMENT AND METERING
6.1 Units of Measurement. For the purposes of this Agreement, Steam
shall be measured in K lbs. of steam mass.
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6.2 Cogen's Measuring Equipment. Cogen shall design, install, operate,
maintain, and own all measuring equipment necessary for an accurate
determination of the quantity of Steam. Except as provided in Article 6.4,
Cogen's meters shall be used for quantity measurements under this Agreement.
6.3 BRC's Measuring Equipment. BRC may design, install, operate,
maintain, and own, at its sole expense, steam measuring equipment, provided
that BRC shall not interfere with Cogen's steam supply system or with Cogen's
measuring equipment.
6.4 Alternative Means of Measurement. In the event Cogen's measuring
equipment is out of service or registers inaccurately, measurement shall be
determined by:
A. Using the registration of any meter or meters of BRC, if
installed and accurately registering; or
B. In the absence of an installed and accurately registering meter
of BRC, making a calibration test or mathematical calculation, if the
percentage of error is ascertainable; or
C. In the absence of both an installed and accurately registering
meter of BRC and an ascertainable percentage of error, estimating by
reference to quantities measured during periods under similar
conditions when Cogen's meter was registering accurately; or
D. In the absence of an ability to use any of the above methods of
measurement, estimating by reference to BRC's operating records for
the Bayway Refinery for the period in question.
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6.5 Testing and Corrections.
A. Testing. The accuracy of Cogen's measuring equipment shall be
tested and verified by Cogen at quarterly intervals in BRC's presence. The
calibration procedure to be used under this Article 6.5A shall be mutually
agreed to by the Parties prior to the time Cogen first delivers Steam to BRC.
In the event that either Party notifies the other that it desires a test of its
own or of the other Party's measuring equipment, the Parties shall cooperate to
secure a prompt verification of the accuracy of such equipment.
B. Costs of Testing. Cogen shall bear the cost of the testing and
any required adjustments of Cogen's measuring equipment done at quarterly
intervals. In the event that BRC requests a testing of Cogen's measuring
equipment at other than quarterly intervals, BRC shall bear the cost of the
testing unless such equipment is found to be inaccurate by greater than two
percent (2%).
C. Corrections of Measuring Equipment. If, upon testing, any
measuring equipment is found to be inaccurate by less than two percent (2%) at
a flow rate corresponding to the average hourly flow rate for Steam supplied by
Cogen to BRC for the Bayway Refinery for the period since the last preceding
test, previous recordings of such equipment shall be considered accurate in
computing deliveries of Steam hereunder, but such equipment shall be promptly
adjusted to record correctly to the extent possible. If, upon testing, any
measuring equipment shall be found to be inaccurate by greater than two percent
(2%) at a
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flow rate corresponding to the average hourly flow rate for Steam supplied by
Cogen to BRC for the Bayway Refinery for the period since the last preceding
test, then such equipment shall be promptly adjusted to record properly, to the
extent possible, and any previous recordings by such equipment shall be
corrected to zero error, to the extent possible, and Cogen shall promptly send
to BRC, pursuant to Article 7, billing adjustments based on such corrected
recordings. If no reliable information exists as to when the equipment became
inaccurate, it shall be assumed for correction purposes hereunder that such
inaccuracy began at a point in time midway between the testing date and the
last previous date on which the equipment was tested and found to be accurate
or adjusted to be accurate.
6.6 Maintenance. Each Party shall have the right to be present
whenever the other Party reads, cleans, changes, repairs, inspects, tests,
calibrates, or adjusts its measuring equipment. Each Party shall give timely
notice to the other Party in advance of taking any of such actions.
6.7 Measurement/Notice. Commencing on the first day of the second
calendar month subsequent to the date Cogen first sells Steam to BRC and
thereafter on the first day of each calendar month during the term of this
Agreement, Cogen shall cause Cogen's measuring equipment to be read, determine
the quantities of Steam delivered to BRC during the immediately preceding
calendar month, and promptly notify BRC in writing of such quantities.
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6.8 Measurement/Notice of Steam delivered to Exxon by BRC. Commencing
on the first day of the second calendar month subsequent to the date Cogen
first sells Steam to BRC, and thereafter on the first day of each calendar
month during the term of this Agreement, BRC shall determine the quantities of
Steam delivered to Exxon by BRC during the immediately preceding calendar
month, and notify Cogen in writing of such quantities on or before the seventh
day of the month. In the event of any discrepancy between the quantities of
Steam delivered to Exxon by BRC as reported by BRC and those reported by Exxon,
Cogen shall rely, for the purposes of this Agreement, on BRC's reported
quantities pending reconciliation among Cogen, BRC and Exxon of the reported
quantities. In the event that such reconciliation between the Exxon and BRC
reported quantities results in a revision of the reported quantities of Steam
delivered to Exxon by BRC, such revisions shall be reflected in an adjusted
invoice pursuant to Article 7.1C of this Agreement.
ARTICLE 7
BILLING AND RECORDS
7.1 Billing.
A. Monthly Xxxx to BRC. On or before the tenth (10th) day of each
month, Cogen shall prepare and deliver to BRC an invoice setting forth the
monthly steam charge as set forth in Article 4.1 for the preceding month. Such
invoice shall also set forth the other information called for in Exhibit C and
shall be
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in the form shown in Exhibit C. If Cogen from time to time does not know its
actual cost of fuel for purposes of Exhibit A calculations for the month in
question when Cogen prepares an invoice pursuant to this Article 7.1A, Cogen
may estimate such cost using all available data. To the extent that an estimate
is provided and used for purposes of determination of Cogen's actual cost of
fuel in Exhibit A, Cogen shall provide BRC a statement of Cogen's actual cost
of fuel as soon as available to Cogen, and Cogen shall make the appropriate
adjustment as well as any adjustment as a result of Cogen's actual cost of fuel
exceeding the cap in Note 1 to Exhibit A, in the following month's invoice.
B. Annual Adjustments. Within thirty (30) days following the end
of each Annual Period, Cogen shall prepare and deliver to BRC an invoice
setting forth any credits due as a result of the annual steam adjustments as
set forth in Article 4.2. Such invoice shall also set forth the other
information called for in Exhibit C and shall be in the form shown in Exhibit
C.
C. Other Adjustments. Cogen shall promptly prepare and deliver to
BRC an invoice setting forth any adjustments for discrepancies in billing
identified through meter verifications pursuant to Article 6.5C, through other
means pursuant to Article 6.4, or for any other reason which would result in
reimbursement of billed amounts to BRC or additional payments by BRC to Cogen.
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7.2 Payment and Penalties.
A. Payment. BRC shall, within fifteen (15) days of the receipt of
Cogen's invoice setting forth the monthly xxxx to BRC pursuant to Article 7.1A,
pay Cogen for all amounts billed. Cogen shall, within fifteen (15) days after
issuing its invoice setting forth annual reconciliation credits due BRC
pursuant to Article 7.1B, pay BRC all amounts due. Reimbursements or additional
payments pursuant to Article 7.1C shall be paid within thirty (30) days of
receipt of the billing adjustment invoice.
B. Interest. If BRC fails to pay timely all or a portion of the
amounts billed pursuant to Article 7.1A or either Party fails to make timely
reimbursements or additional payments pursuant to Article 7.1B or 7.1C within
the time stated in this Article 7, interest on the unpaid portion shall accrue
from the date due until paid at two percent (2%) over the bank prime loan rate
as reported in Federal Reserve Statistical Release H.15 (or a successor
publication of similar authority, if Statistical Release H.15 is discontinued)
for the day the payment becomes due; provided, however, in no event shall this
rate of interest exceed the maximum rate of interest permissible under the laws
of the State of New Jersey.
7.3 Disputes. If any invoice or adjustment under Article 7.1 is
disputed by either Party and subsequently resolved, there shall be added to the
amount determined to be due Cogen or credited to the amount due BRC, if BRC is
due a refund, interest calculated in the same manner as for late payments under
Article 7.2B.
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7.4 Records. Both Cogen and BRC shall keep all invoices, receipts,
charts, computer printouts, punchcards, magnetic tapes, and other records
related to the volume and price of Steam sales made under this Agreement,
including Cogen's cost of fuel and all calculations based on such records. Such
records shall be made available for inspection and copying by either Party or
their representatives upon reasonable notice. Each Party shall keep all such
materials for a minimum of three (3) years from the date of their preparation.
ARTICLE 8
TAXES
BRC shall be solely responsible for any sales, use, gross receipts,
transfer, and similar taxes that may be imposed on the sale of Steam by Cogen
to BRC under this Agreement. Cogen shall not be responsible for any sales, use,
gross receipts, transfer and similar taxes which may be imposed on the sale of
Steam to any other party by BRC. Cogen shall be solely responsible for any
taxes that may be imposed on the manufacture of steam by Cogen under this
Agreement.
ARTICLE 9
AUTHORITY
9.1 Authority of BRC. BRC hereby represents and warrants to Cogen as
follows:
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A. BRC is a corporation duly organized and existing in good
standing under the laws of the State of Delaware.
B. BRC possesses all requisite power and authority to enter into
and perform this Agreement and to carry out the transactions
contemplated herein.
C. No suit, action or arbitration, or legal, administrative or
other proceeding is pending against BRC or its Affiliates that would
affect the validity or enforceability of this Agreement or the ability
of BRC to materially fulfill its commitments hereunder.
9.2 Authority of Cogen. Cogen hereby represents and warrants to BRC as
follows:
X. Xxxxx is a limited partnership duly organized and existing
under the laws of the State of Delaware and is duly qualified to do
business in the State of New Jersey.
X. Xxxxx possesses all requisite power and authority to enter into
and perform this Agreement and to carry out the transactions
contemplated herein.
C. No suit, action or arbitration, or legal, administrative or
other proceeding is pending against Cogen or its Affiliates that would
affect the validity or enforceability of this Agreement or the ability
of Cogen to materially fulfill its commitments hereunder.
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ARTICLE 10
FORCE MAJEURE
10.1 Definition. Except for the obligations of a Party to make
payments when due under this Agreement, the Parties shall be excused from
delays in performance or failures to perform their respective obligations
hereunder and shall not be liable in damages or otherwise, if and only to the
extent that such delays or failures are caused by Force Majeure. The term
"Force Majeure" means any cause beyond the reasonable control of the affected
Party, including, without limitation, storm, flood, lightning, drought,
earthquake, fire, explosion, civil disturbance, labor dispute, act of God or
the public enemy, or action of a court or governmental authority. Financial
distress of either Party, late delivery of materials or equipment (unless
itself caused by Force Majeure), or inadequate performance by contractors
(unless itself caused by Force Majeure) shall not be considered Force Majeure.
10.2 Burden of Proof. The burden of proof as to whether a Force
Majeure event or condition has occurred shall be upon the Party claiming that
it should be excused from performing its obligations hereunder due to the
occurrence of such an event or condition.
10.3 Condition. If either Party relies on Force Majeure as a basis for
being excused from performance of its obligations under this Agreement, then
the Party relying on Force Majeure shall:
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A. Provide prompt oral notice to the other Party, confirmed
promptly in writing, of the occurrence of the event or condition, with
an estimate of its expected duration and the probable impact on the
performance of its obligations hereunder;
B. Exercise all reasonable efforts to continue to perform its
obligations hereunder;
C. Expeditiously take action to correct or cure the event or
condition excusing performance to the extent reasonably practicable;
D. Exercise all reasonable efforts to mitigate or limit damages to
the other Party; and
E. Provide prompt oral notice to the other Party, confirmed
promptly in writing, of the cessation of the event or condition giving
rise to its excusal from performance.
10.4 Labor Disputes. This Article 10 shall not require the settlement
of any strike, walkout, lockout, or other labor dispute on terms which, at the
discretion of the Party involved, are contrary to its interests. The settlement
of such labor disputes shall be at the sole discretion of the Party involved.
10.5 Termination for Force Majeure. If Cogen is excused from
performing its obligations hereunder due to Force Majeure, and such Force
Majeure continues in effect for a period of six (6) months after the initial
event or condition of Force Majeure, subject to Article 10.6, BRC may terminate
this Agreement, effective on the last day of such six (6) month period or
thereafter, by giving Cogen and the Financier identified in
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Article 11.4 at least thirty (30) days' prior written notice. Failure
by Cogen to perform its obligations due to Force Majeure or the
failure by Cogen to implement one of the alternatives described in
subparagraph (i), (ii), or (iii) of Article 10.6A shall not be
considered a breach of this Agreement by Cogen.
10.6 Cogen's Right to Temporary Cure.
A. If Cogen is prevented for a period of six (6) months by Force
Majeure from delivering to BRC Steam in accordance with Article 3 from the
Cogeneration Facility, Cogen, at its option, may prevent BRC from terminating
this Agreement pursuant to Article 10.5, and will be in compliance with this
Agreement, by:
(i) supplying Steam from temporary boilers or otherwise to the
Bayway Refinery in an amount, quality, and at a cost as
provided in Articles 3 and 4; or
(ii) paying to BRC the cost of procurement and installation by
BRC of temporary boilers to supply steam to the Bayway
Refinery in an amount and quality as provided in Article 3
and paying BRC any difference between the cost to BRC of
generating such steam and the cost BRC would have incurred
in buying Steam under Articles 3 and 4, provided that this
option shall not apply unless BRC is reasonably able to
procure, install, and operate such temporary boilers; or
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(iii) paying to BRC any difference between BRC's cost for steam
purchased from Public Service Electric and Gas Company (or
its successor) and the cost BRC would have incurred in
buying Steam under Articles 3 and 4;
from the end of the six (6) month period described in Article 10.5 until either
the Force Majeure no longer prevents Cogen from delivering Steam in accordance
with Article 3 from the Cogeneration Facility, or until twenty-four (24) months
after Cogen gives BRC written notice that Cogen does not intend to continue
pursuant to subparagraph (i), (ii), or (iii) above. If Cogen elects to continue
the Agreement in force by implementing one of the alternatives described in
subparagraph (i), (ii), or (iii) above, it must give BRC at least ninety (90)
days' prior written notice to that effect and such notice must specify which
alternative Cogen elects. In the event that Cogen subsequently gives BRC such
written notice that it does not intend to continue pursuant to subparagraph
(i), (ii), or (iii) above, the termination of this Agreement pursuant to
Article 10.5 shall be effective twenty-four (24) months after Cogen gives BRC
such written notice.
B. For purposes of determining the cost which BRC would have
incurred in buying Steam under Articles 3 and 4, the cost of Cogen's fuel for
the Exhibit A calculations shall conclusively be deemed to be the Weighted
Average Cost of Gas. Additionally, the cost which BRC would have incurred in
buying
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Steam under Articles 3 and 4 shall include payments or credits to BRC for the
annual steam adjustment.
C. The implementation by Cogen of one of the alternatives
described in subparagraphs (i), (ii), and (iii) of Article 10.6A and subsequent
termination of this Agreement by Cogen on twenty-four (24) months' prior
written notice to BRC shall not be considered a breach of this Agreement by
Cogen.
ARTICLE 11
BREACH OF CONTRACT AND TERMINATION
11.1 BRC's Right to Terminate. Subject to Article 11.4, BRC shall have
the right, at its option, to terminate this Agreement upon the occurrence of
any of the following events:
X. Xxxxx breaches this Agreement by failing to substantially
perform any material obligation under this Agreement, which failure
continues for a period of sixty (60) days after BRC gives Cogen and
the Financier identified in Article 11.4 written notice of such
breach; provided, however, that if such breach may not reasonably be
cured within such sixty (60) day period, BRC may not terminate this
Agreement pursuant to this Article 11.1A if Cogen diligently commences
to cure such breach within such sixty (60) day period, and this
Agreement shall remain in effect for so long as Cogen diligently
continues such efforts, unless such breach continues uncured for six
(6) months
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after BRC's written notice of breach to Cogen and the Financier
identified in Article 11.4; or
X. Xxxxx claims that it is excused from failing to deliver Steam
to BRC from the Cogeneration Facility due to Force Majeure and does
not within six (6) months either resume full performance or initiate
one of the alternative arrangements described in Article 10.6, and BRC
gives Cogen and the Financier thirty (30) days' prior written notice
of termination pursuant to Article 10.5; or
C. BRC elects to terminate this Agreement at the expiration of the
Base Term or at the expiration of the first five (5) year renewal
term, as the case may be, by giving to Cogen and the Financier five
and one-half (5-1/2) years' prior written notice of termination, as
provided in Article 2.2.
11.2 Cogen's Right To Terminate. Cogen shall have the right, at its
option, to terminate this Agreement upon the occurrence of any of the following
events:
A. BRC breaches this Agreement by failing to make timely payment
to Cogen of the monthly Steam charges pursuant to Article 7, which
failure continues for a period of thirty (30) days after Cogen gives
BRC written notice of such failure to pay; or
B. BRC breaches this Agreement by failing to substantially perform
any material obligation under this Agreement, other than payment of
amounts due as described in Article 11.2A, which failure continues for
a period of sixty
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(60) days after Cogen gives BRC written notice of such breach;
provided, however, that if such breach may not reasonably be cured
within such sixty (60) day period, Cogen may not terminate this
Agreement pursuant to this Article 11.2B, if BRC diligently commences
to cure such breach within such sixty (60) day period, and this
Agreement shall remain in effect for so long as BRC diligently
continues such efforts, unless the breach continues uncured for six
(6) months after Cogen's written notice of breach to BRC; or
X. Xxxxx claims that it is excused from failing to perform its
obligations under this Agreement due to Force Majeure, initiates one
of the alternative arrangements described in Article 10.6, and
subsequently gives BRC twenty-four (24) months' prior written notice
under Article 10.6 that Cogen does not intend to continue such
arrangement; or
D. BRC's External Steam Requirements from Cogen under this
Agreement fall below 258,280 K lbs. of Steam in any Annual Period
(other than because of Force Majeure) and Cogen, with BRC's External
Steam Requirements from Cogen in combination with the steam demand
from Cogen's other steam customers, is unable to maintain the status
of the Cogeneration Facility as a "qualifying cogeneration facility"
(as defined in Section 3(18) of the Federal Power Act and the
regulations thereunder) for at least two (2) gas
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turbines, and Cogen subsequently gives BRC six (6) month's
prior written notice of termination of this Agreement; or
X. Xxxxx elects to terminate this Agreement at the expiration of
the Base Term or at the expiration of the first five (5) year renewal
term, as the case may be, by giving to BRC four (4) years' prior
written notice of termination, as provided in Article 2.2.
Any notice from Cogen to BRC of termination of this Agreement will be effective
only if such notice either (i) is joined in by the Financier T in writing, if
there is a Financier then in existence, or (ii) certifies on its face that
there is no Financier.
11.3 Automatic Termination. This Agreement shall automatically
terminate as of the effective date set forth in Article 11.5 below if:
A. The Ground Lease terminates under Section 16.3B of the Ground
Lease Agreement (relating to full taking of the Demised Premises);
B. The Ground Lease enters the Improvements Removal Period or
terminates for any other reason; or
C. This Agreement continues in effect until January 1, 2033, and
is not extended by the written consent of the Parties.
11.4 Notice to the Financier, Lenders and Mortgagees.
A. BRC shall have no right to terminate this Agreement for breach
pursuant to Article 11.1A or 11.1B, until BRC (i) has provided the Financier
substantially the same notice
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which BRC is obligated to provide Cogen pursuant to Article 11.1A, 11.1B, or
11.5A; (ii) has provided the Financier the same right to cure such breach as
Cogen; and (iii) in the case of breach which is susceptible of being cured only
if the Financier has access to the Demised Premises, the "Improvements," the
"Interconnection Areas," the "Utility Areas," and the "Access Rights of Way,"
in each case as defined in the Ground Lease Agreement (and only in the case of
such breach), has provided the Financier six (6) additional months subsequent
to the end of the period in Article 11.1A for the cure of any such breach,
without extension for any period contemplated in Article 10, to cure such
breach; provided that the Financier has pursued and continues to pursue with
diligence, continuity and good faith all actions to enable the Financier to
obtain access in order to cure, and to cure, such breach; provided, further,
that in respect of any such breach which is the failure to deliver to BRC Steam
from the Cogeneration Facility in accordance with Article 3, the Financier must
also pay to BRC, for so long as such breach continues during such additional
period, any difference between BRC's reasonable cost for replacement steam from
any other source and the cost BRC would have incurred in buying Steam under
Articles 3 and 4. BRC may in its discretion obtain such replacement steam from
any source (within or external to the Bayway Refinery) it deems appropriate.
All payments by the Financier to BRC pursuant to the above provision will be
made, to the account specified by BRC in writing, monthly within ten (10) days
of receipt by the Financier of a written statement from BRC setting forth the
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amount due and in reasonable detail the basis for the amount due. The cost
which BRC would have incurred in buying Steam under Articles 3 and 4 shall be
calculated as provided in Article 10.6X.
X. Xxxxx shall have no right to terminate this Agreement pursuant
to Article 11.2 until Cogen (i) has provided any lender to whom BRC has
assigned the Ground Lease Agreement to secure a loan and has provided any
mortgagee holding a mortgage on all or any part of BRC's Property substantially
the same notices which Cogen is obligated to provide BRC pursuant to Article
11.2, and (ii) has provided such lender or mortgagee the same right to cure as
BRC, provided that BRC has previously given Cogen actual notice of the
appropriate contact person and address for any such lender or mortgagee. If
Cogen gives BRC written notice of its termination of this Agreement, BRC shall
notify the Financier that BRC has received such notice.
11.5 Effective Date of Termination.
A. If a breach described in Article 11.1A occurs and the time
period described in Article 11.1A has expired, BRC may promptly give Cogen a
second written notice, which notice shall, when given, terminate this
Agreement.
B. If the events described in Article 11.1B occur, this Agreement
shall terminate at the end of the thirty (30) day period referred to in Article
10.5.
C. If the events described in Article 11.1C occur, this Agreement
shall terminate at the expiration of the Base Term
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or at the expiration of the first five (5) year renewal term, as the case may
be.
D. If a breach described in Article 11.2A or 11.2B occurs and the
applicable time period described in Article 11.2A or 11.2B has expired, Cogen
may promptly give BRC a second written notice, which notice shall, when given,
terminate this Agreement.
E. If the events described in Article 11.2C occur, this Agreement
shall terminate upon the expiration of the twenty-four (24) month notice period
described in Article 10.6A.
F. If the events described in Article 11.2D occur, this Agreement
shall terminate upon the expiration of the six (6) month notice period
described in Article 11.2D; provided that, if BRC does not need Steam from
Cogen for all of such six (6) month period, BRC shall promptly advise Cogen in
writing and the Parties may accelerate the termination date of this Agreement
by mutual written consent.
G. If the events described in Article 11.2E occur, this Agreement
shall terminate at expiration of the Base Term or at the expiration of the
first five (5) year renewal term, as the case may be.
H. If any of the events described in Article 11.3A occurs, this
Agreement shall automatically terminate when the Ground Lease terminates. If
the Ground Lease terminates for any other reason, this Agreement shall
automatically terminate pursuant to Article 11.3B when the Improvements Removal
Period
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commences or, if there is no Improvements Removal Period, when the Ground
Lease terminates.
I. If the event described in Article 11.3C occurs, this Agreement
shall terminate at 12:01 a.m. on January 1, 2033.
11.6 Transition.
A. If this Agreement is terminated for any reason, the Parties
shall work together to achieve a smooth transition. Unless and until this
Agreement has been terminated, neither Party shall refuse to make any of the
payments or perform any of the other obligations required under this Agreement
on the basis of any anticipated termination of this Agreement, or any actual or
alleged breach by the other Party, subject to the exception described in
Article 11.6B below.
B. If Cogen terminates the Ground Lease under Sections 16.2D
(relating to termination of the Power Purchase Agreement), 16.2E (relating to
inability of Cogen to receive or maintain Governmental Authorizations), 16.2F
(relating to inability of the Demised Premises and other areas to be used for
Cogen's purposes), or 16.2G (relating to partial taking) of the Ground Lease
Agreement, thus triggering subsequent automatic termination of this Agreement
under Article 11.3, it is understood that Cogen may not be able to continue to
provide Steam to BRC under this Agreement. In such event, Cogen shall: (i) use
its best efforts to continue to supply Steam to BRC, as would otherwise be
required by Article 3.1A, until the commencement of the Improvements Removal
Period, or (ii) if Cogen cannot supply such Steam, permit BRC to operate and
maintain the
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Cogeneration Facility to supply steam to the Bayway Refinery until the
commencement of the Improvements Removal Period, provided that in neither event
shall Cogen be required to make capital expenditures or to incur out-of-pocket
operating and maintenance costs net of revenues in order to keep the
Cogeneration Facility operational, unless BRC fully and promptly reimburses
Cogen for such capital expenditures and out-of-pocket operating costs net of
revenues.
ARTICLE 12
LIABILITY
12.1 Limitation on Liability for Damages.
X. Xxxxx, and its officers, directors, partners, agents,
employees, Affiliates, successors and assigns shall not be liable under this
Agreement to BRC or its officers, directors, partners, agents, employees,
Affiliates, or their successors or assigns, for any punitive, indirect, or
consequential damages, including loss of profits, however caused; provided that
this limitation shall not apply to any damages under this Agreement caused by
Cogen's intentional provision of steam to another entity with the result that
BRC does not receive the amounts of Steam it is entitled to under this
Agreement.
B. BRC and its officers, directors, partners, agents, employees,
Affiliates, successors and assigns shall not be liable under this Agreement to
Cogen or its officers, directors, partners, agents, employees, Affiliates, or
their
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successors or assigns, for any punitive, indirect, or consequential damages,
including loss of profits, however caused; provided that this limitation shall
not apply to any damages under this Agreement caused by BRC's intentional
purchase and acceptance of steam for industrial purposes at the Bayway Refinery
from an entity other than Cogen, or caused by BRC's provision to itself of
steam for industrial purposes from steam sources other than those described in
Exhibit D, when BRC has not purchased Steam from Cogen in such amounts as
specified in Article 3.1B and Cogen is otherwise able to provide such amounts
of Steam.
C. Nothing in this Article 12.1 shall prohibit or prevent Cogen
from making the allocations of Steam described in Article 3.2A, nor shall
anything in this Article 12.1 prohibit or prevent BRC from obtaining steam from
alternate sources pursuant to and under the circumstances described in Article
3.2B, which activities shall not be deemed breaches of this Agreement.
D. In the event this Agreement is terminated pursuant to Article
11.1B, 11.1C, 11.2C, 11.2D, 11.2E, 11.3C hereof, or in the event this Agreement
is terminated pursuant to Article 11.3A or 11.3B because the Ground Lease
Agreement was terminated pursuant to Section 16.1D, 16.1F, 16.2C, 16.2D, 16.2E,
16.2F, 16.2G, 16.2H, 16.3A or 16.3B of the Ground Lease Agreement, both Parties
shall be discharged from all obligations under this Agreement other than those
which accrued before the effective date of such termination of this Agreement.
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12.2 Damages.
A. If either Party breaches this Agreement, the aggrieved Party
shall be entitled to seek damages as available at law except as may be limited
pursuant to Article 12.1.
B. Subject to the limitations in Article 12.1 above and in Section
14.1 of the Ground Lease Agreement, if either Party terminates the Ground Lease
Agreement because of default by the other Party under the Ground Lease
Agreement, the aggrieved Party shall be entitled to seek damages under both the
Ground Lease Agreement and this Agreement (which will automatically terminate
under Article 11.3B), but shall not be entitled to double recovery of damages,
that is, recovery of the same damages under both agreements.
C. Termination of this Agreement shall not automatically trigger
termination of the Ground Lease Agreement. However, subject to the limitations
in Article 12.1 above and in Section 14.1 of the Ground Lease Agreement, if
either Party terminates this Agreement because of breach by the other Party
under this Agreement and subsequently terminates the Ground Lease Agreement
(under Sections 16.1C or 16.2B of the Ground Lease Agreement, as applicable)
based on the termination of this Agreement, the aggrieved Party shall be
entitled to seek damages under both this Agreement and the Ground Lease
Agreement, but shall not be entitled to double recovery of damages, that is,
recovery of the same damages under both agreements.
12.3 Specific Performance. In addition to the right of termination
referred to in Article 11, BRC and Cogen shall each
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have the right to seek the specific performance by the other Party of any of
its obligations under this Agreement.
ARTICLE 13
NONWAIVER
The various rights, remedies, options, and elections of BRC and Cogen
as expressed herein are cumulative, and the failure of BRC or Cogen to enforce
strict performance by the other Party of the provisions of this Agreement or to
exercise any right, election, or option or to resort or have recourse to any
remedy herein conferred will not be construed or deemed to be a waiver or a
relinquishment of the future enforcement by BRC or Cogen of any such
provisions, rights, options, elections, or remedies, but the same will continue
in full force and effect.
ARTICLE 14
NOTICE AND SERVICE
14.1 Notice. All notices, requests, demands and other communications
required or permitted under the terms of this Agreement shall be sufficient in
form if in writing and shall be deemed to be duly given if delivered by
personal service, telegram, or mailed certified or registered first class mail,
postage prepaid, properly addressed to the Party entitled to receive such
notice pursuant to Article 14.3.
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14.2 Date of Service.
A. Mail. If a notice is sent by registered or certified mail, it
shall be deemed given within three (3) days, excluding Saturdays, Sundays, or
legal holidays of the State of New Jersey, after deposit of the same in the
United States mail, postage prepaid, except as otherwise demonstrated by a
signed receipt.
B. Telegram. If a notice is served by telegram, it shall be deemed
given eighteen (18) hours after delivery to the telegram company.
C. Personal Service. If a notice is served by personal service, it
shall be deemed given upon the date of actual delivery to the address of the
Party to be notified.
14.3 Addresses. Notices may be sent to the Parties at the following
addresses:
X. Xxxxx: Cogen Technologies Linden Venture, L.P.
c/o RCM Holdings, Inc.
33rd Floor
000 Xxxxxxxxx Xx.
Xxxxxxx, Xxxxx 00000
Attn.: Xx. Xxxxxx X. XxXxxx
President
with a copy to: Cogen Technologies Linden Venture, L.P.
0000 Xxxxxxxx Xxxxx Xxxxx Xx.
Xxxxx 00
Xxxxxxxxx, Xxx Xxxxxx 00000
Attn: Director of Operations
B. BRC: Bayway Refining Company
0000 Xxxx Xxxxxx
Xxxxxx, Xxx Xxxxxx 00000
Attn.: Xx. Xxxxxx Xxxxxxx
President
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with a copy to: Bayway Refining Company
0000 Xxxx Xxxxxx
Xxxxxx, Xxx Xxxxxx 00000
Attn.: Refinery Manager
or to such other and different persons or addresses as may be designated by
the Parties.
ARTICLE 15
AMENDMENTS
No amendment or modification of the terms of this Agreement shall be
binding on either BRC or Cogen unless reduced to writing and signed by both
Parties.
ARTICLE 16
SUCCESSORS AND ASSIGNS
16.1 Assignment by BRC. At any time BRC may sell or transfer all or
any part of the Bayway Refinery or BRC's Property to any Affiliate of BRC or
any third party. If BRC sells or otherwise transfers all of the Bayway Refinery
to any entity, this Agreement shall automatically be assigned to such entity
and shall be binding on and inure to the benefit of any such entity. Subject to
Article 16.6, if BRC sells or otherwise transfers to any entity any part of the
Bayway Refinery which has consumed Steam since April 8, 1993, such transferee
and Cogen shall enter into the separate agreement described in Article 16.5 for
the continued provision of Steam to that part of the Bayway Refinery
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for such transferee's use and, if applicable, for delivery to Exxon.
16.2 Assignment by Cogen. Cogen shall not assign, transfer, pledge, or
hypothecate this Agreement at any time, except that:
X. Xxxxx may at any time assign, pledge, or hypothecate this
Agreement, provided that, in accordance with the terms of the Ground
Lease Agreement, the Ground Lease Agreement is simultaneously
assigned, pledged, or hypothecated to the same entity by Cogen; and
X. Xxxxx may at any time assign or transfer this Agreement to an
unrelated entity, provided that such unrelated entity shall also
assume Cogen's rights and obligations under the Ground Lease
Agreement, and (i) first deliver to BRC its written assumption
agreement substantially in the form of Exhibit G-1 to be bound by all
of the provisions of this Agreement and the Ground Lease Agreement;
(ii) have the personnel, experience, equipment and other resources
reasonably required to perform its obligations under this Agreement
and the Ground Lease Agreement; (iii) be financially capable based
upon reasonable standards of performing its obligations under this
Agreement and the Ground Lease Agreement; and (iv) be in other
respects reasonably acceptable to BRC. Subject to Article 16.7, this
Agreement shall be binding on and inure to the benefit of the
successors and assigns of Cogen.
16.3 Continuing Obligations. No assignment of this Agreement by BRC or
Cogen shall operate to relieve BRC or Cogen
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of any obligations under this Agreement which have accrued prior to the
effective date of the assignment. An obligation shall be deemed to have accrued
before the effective date of an assignment only if all the substantive elements
of the obligation have accrued by that date. An assignment of this Agreement
shall relieve the assignor of any obligations to the other Party under this
Agreement which have not accrued before the effective date of the assignment;
provided, however, that the assignor shall continue to be obligated under this
Agreement if any such assignment shall be ineffective.
16.4 Ground Lease Agreement. No assignment of this Agreement by BRC or
Cogen shall operate to relieve BRC or Cogen of any of their obligations under
the Ground Lease Agreement, including without limitation any environmental
obligations and obligations with respect to the New Jersey Environmental
Cleanup Responsibility 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, as
those obligations are defined in the Ground Lease Agreement.
16.5 Transfers of Part of the Bayway Refinery.
A. Subject to Article 16.6, if BRC sells or otherwise transfers to
any entity any part of the Bayway Refinery which has consumed Steam since April
8, 1993, such transferee shall be obligated to enter into a separate agreement
with Cogen covering the provision of Steam to such entity. In such event, BRC's
obligations to purchase Steam and Cogen's obligations to provide Steam under
this Agreement shall be reduced pursuant to
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Article 16.5B, and the formulas for calculating the monthly steam charge and
annual steam adjustment under this Agreement shall be adjusted pursuant to
Article 16.5C. The provisions of any separate agreement shall be substantially
similar to those of this Agreement, with the transferee assuming the rights and
obligations of BRC for the remaining term of this Agreement with respect to the
transferee's part of the Bayway Refinery, except that (i) Article 2 shall
reflect, as appropriate, that some of the Base Term of the Agreement will have
passed; (ii) Article 3 shall incorporate reduced rates of Steam according to
Article 16.5B below; (iii) Exhibit A shall be amended according to Article
16.5C below; (iv) Exhibits B, C and D shall be amended as appropriate; and (v)
the references to the Ground Lease Agreement may or may not continue to apply,
depending on whether the transferee succeeds to BRC's interest in the Ground
Lease Agreement.
B. Subject to Article 16.6, should BRC sell or otherwise transfer
any part of the Bayway Refinery, with the result that the transferee enters
into a separate agreement covering the provision of Steam to such entity
pursuant to Article 16.5A, the rates of Steam set forth in Articles 3.1A, 3.1B,
3.1D, 3.1E and 11.2D of such separate agreement shall be reduced on a pro rata
basis by multiplying the rate in question by a/b, where a is the total amount
of Steam provided by Cogen to the part of the Bayway Refinery subject to
transfer during the last twenty-four (24) month period of continuous steam use
at such part of the Bayway Refinery subsequent to April 8, 1993 (or
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a reasonable estimate of the same if the data is unavailable) and b is the
total amount of Steam provided by Cogen during the same period of time to the
Bayway Refinery (excluding those parts of the Bayway Refinery identified in
Exhibit F). The rates of Steam set forth in Articles 3.1A, 3.1B, 3.1D, 3.1E and
11.2D of this Agreement shall thereafter be reduced on a pro rata basis by
multiplying the rate in question by (b-a)/b. An example of a pro rata
allocation of Steam is set forth in Exhibit E. If a is zero (i.e., the part of
the Bayway Refinery to be transferred has not used steam other than from the
sources described in Exhibit D for a continuous twenty-four (24) month period
since April 8, 1993), the transferee shall have no obligation to enter into any
separate agreement with Cogen. If part of the Bayway Refinery to be transferred
has been removed from operation requiring steam prior to and at the time of
transfer and if the transferee has no intention of using steam at that part of
the Bayway Refinery and will affirm the same to Cogen in writing, then neither
the transferee nor Cogen will have any obligation to enter into any separate
agreement pursuant to Article 16.5A and this Agreement shall not be modified
pursuant to Article 16.5A. The rates of high pressure level and low pressure
level Steam set forth in Article 3.4 shall also be pro rated. These pro rations
shall be based on high pressure level and low pressure level Steam use and
shall be calculated using methods similar to the methods described above as
illustrated in the example set forth in Exhibit E.
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C. Should BRC sell or otherwise transfer any part of the Bayway
Refinery with the result that the transferee enters into a separate agreement
covering the provision of Steam to such entity pursuant to Article 16.5A,
Exhibit A of such separate agreement shall be amended by multiplying the number
"123" in those places where it appears by the fraction a/b determined under
Article 16.5B. Furthermore, this Agreement will be amended by multiplying the
number "123" in Exhibit A by the fraction (b- a)/b. An example of an amendment
to the number "123" in Exhibit A is set forth in Exhibit E.
16.6 Selected Transfers. BRC may freely sell or otherwise transfer
those parts of the Bayway Refinery identified in Exhibit F (the Rahway Tank
Field and the Forty-Acre Tank Field) or any new facilities constructed after
April 8, 1993 and Cogen shall be under no obligation to supply Steam to the
transferee and the transferee shall be under no obligation to take Steam from
Cogen.
16.7 Rights of the Financier and Other Lenders.
A. BRC has executed and delivered to the Owner Trust, as
Financier, a recognition agreement substantially in the form shown in Exhibit
H. Hereafter, if Cogen assigns, pledges, or hypothecates this Agreement to
secure a loan from another Financier to be recognized as the Financier by BRC
for purposes of this Agreement, pursuant to Article 16.2 above, in connection
therewith BRC shall execute a consent to any such assignment, in substantially
the form shown in Exhibit I, as may be reasonably
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requested by the other Financier and BRC shall give the information specified
in Article 16.8 below.
B. On instructions from the Financier, unless otherwise directed
by a court of competent jurisdiction, BRC shall make all payments due Cogen
under this Agreement in accordance with the written instructions of the
Financier in conformity with its documentation with Cogen, and in such event
BRC shall not be liable to Cogen for such payments.
C. If the general partner of Cogen becomes in default under its
partnership agreement with the Owner Trust, the Owner Trust may designate a new
general partner of Cogen, provided that such new general partner has the
personnel, experience, equipment and other resources reasonably required to
perform its obligations under this Agreement and the Ground Lease Agreement and
is in other respects reasonably acceptable to BRC. BRC agrees that General
Electric Company and General Electric Capital Corporation meet the requirements
of Article 16.7C(ii), (iii), and (iv) (and the comparable requirements of
Article 16.7F(ii)(b), (c), and (d)). Similarly, if Cogen becomes in default
under any loan documentation with the Financier or any successor or assign of
Financier holding a collateral assignment, pledge, or hypothecation of Cogen's
interest in this Agreement, the Financier or such successor or assign may
assume or cause a third party to assume Cogen's rights and obligations under
this Agreement at any time, provided that the Financier or such successor,
assign, or third party must first give BRC reasonable written notice of such
assumption, which notice shall contain a
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request (which specifically references this Article 16.7C) for a list of all
defaults of Cogen under this Agreement and the Ground Lease Agreement, at least
thirty (30) days in advance and must first: (i) enter into an agreement with
BRC agreeing to assume Cogen's rights and obligations thereafter accruing under
this Agreement and the Ground Lease Agreement and to cure all existing defaults
of Cogen under this Agreement and the Ground Lease Agreement that can be cured
(including without limitation paying all amounts owed by Cogen to BRC, subject
to the caps set forth in Exhibit G-3, if applicable) pursuant to and as
provided in an assumption agreement substantially in the form of Exhibit G-2;
provided that the Financier or any nominee or designee of the Financier holding
the interest in this Agreement for the benefit of the Financier may enter into
such an assumption agreement substantially in the form of Exhibit G-3; (ii)
have the personnel, experience, equipment, and other resources reasonably
required to perform its obligations under this Agreement and the Ground Lease
Agreement; (iii) be financially capable based upon reasonable standards of
performing its obligations under this Agreement and the Ground Lease Agreement;
and (iv) be in other respects reasonably acceptable to BRC. In such event, BRC
will accept performance by such Financier, successor, assign, or third party.
D. Following the assumption of Cogen's rights and obligations
under this Agreement by the Financier or its successor, assign, or a third
party pursuant to Article 16.7C, such Financier, successor, assign, or third
party may assign its
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rights and obligations under this Agreement to any entity, provided that such
Financier, successor, assign, or third party must first give BRC reasonable
written notice of such assignment at least thirty (30) days in advance and must
first meet the requirements of Article 16.7C(i), (ii), (iii), and (iv). Any
such entity may, with reasonable written notice to BRC at least thirty (30)
days in advance, assign its rights and obligations under this Agreement to
other entities meeting the requirements of Article 16.7C(i), (ii), (iii), and
(iv). In such event, BRC will accept performance by such entity.
E. Notwithstanding any other provision of this Agreement, after
the Financier or any successor, assign, third party or other entity referred to
in Article 16.7C or 16.7D above assumes Cogen's rights and obligations under
this Agreement, BRC will retain all of its rights under this Agreement,
including without limitation the right to terminate this Agreement for any of
the reasons specified in Article 11. Furthermore, Cogen and the Financier (and
its successors and assigns) will give BRC concurrent notice of any default by
Cogen and the exercise by Financier (and its successors and assigns) of any
remedy under any of the documentation between Cogen and Financier (and its
successors and assigns) pertaining to the Cogeneration Facility.
F. In the event of the rejection of this Agreement and the Ground
Lease Agreement prior to their stated expiration dates pursuant to Section 365
of the Bankruptcy Code of 1978, as amended, or any successor provision thereto,
in a case wherein Cogen is the debtor, BRC will enter into both a new steam
sale
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agreement and a new ground lease of the Demised Premises with the Financier or
the same nominee or designee of the Financier for the remainder of the term of
this Agreement and the Ground Lease Agreement, respectively (assuming no
rejection had occurred), effective, in each case, as of the date of such
rejection and upon substantially the same covenants, agreements, terms,
provisions, and limitations herein contained and therein contained (in each
case, excluding a provision equivalent to this Article 16.7F), provided:
(i) the Financier delivers a written request to BRC for such new
steam sale agreement and new ground lease within thirty (30) days
from the date of such rejection, which written request is
accompanied by payment to BRC of all amounts due to BRC under
this Agreement and the Ground Lease Agreement and unpaid as of
the date of such request and which request identifies the party
to act as supplier under the new steam sale agreement and lessee
under such new ground lease;
(ii) the Financier or such nominee or designee who is to act as
supplier under the new steam sale agreement and lessee under such
new ground lease must (a) cure all existing defaults of Cogen
under this Agreement and the Ground Lease Agreement that can be
cured and that would exist but for such rejection (including
without limitation paying all amounts owed by Cogen to BRC,
subject to the limitations of recovery set forth in
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Article 10 of the Ground Lease Agreement), (b) have the
personnel, experience, equipment, and other resources reasonably
required to perform its obligations under the new steam sale
agreement and the new ground lease agreement, (c) be financially
capable based upon reasonable standards of performing its
obligations under the new steam sale agreement and the new ground
lease agreement, and (d) be in other respects reasonably
acceptable to BRC;
(iii) such new steam sale agreement and new ground lease agreement will
expressly provide that BRC will not be required to deliver actual
possession of the Demised Premises on the date of execution and
delivery thereof free of lessees, tenants, or other occupants;
(iv) such new steam sale agreement and new ground lease agreement will
expressly provide that with respect to all representations,
warranties, and covenants of BRC under the new steam sale
agreement and new ground lease agreement that refer to the "date
hereof" or "effective date of this Agreement" or words or phrases
or provisions of similar import, the same refer to the date of
this Agreement and the assignment of the Ground Lease Agreement,
respectively, and not the date of execution and delivery of such
new steam sale agreement and new ground lease agreement and it is
agreed that BRC will not be obligated to remove any liens placed
on
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the Demised Premises or any other part of BRC's Property
subsequent to the date hereof;
(v) the last sentence of Section 8.2 of such new ground lease
agreement will expressly exclude Cogen, the Ground Lease
Agreement and persons claiming by, through or under Cogen or its
successors and assigns under the Ground Lease Agreement (and
actions or omissions of such persons) and claims and actions of
the same from the operation thereof; and
(vi) the Financier or such nominee or designee enters into both a new
steam sale agreement and a new ground lease agreement, unless
this Agreement has been previously terminated in accordance with
its terms other than in the event this Agreement is rejected
pursuant to Section 365 of the Bankruptcy Code of 1978, as
amended, or any successor provision thereto, in a case wherein
Cogen is the debtor.
G. So long as there exists a Financier, BRC and Cogen shall not,
without the prior written consent of the Financier (which consent shall not be
unreasonably delayed or withheld) enter into a written amendment of this
Agreement.
16.8 Status Certificates. Either Party from time to time at the
request of the other Party shall sign promptly a written certificate confirming
that this Agreement has been duly authorized, is valid, and does not conflict
with the articles of incorporation, by-laws, or partnership agreement of the
Party in question, and stating whether the Agreement is in full force and
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effect; whether it has been modified or amended, and if so, the substance of
such modification or amendment; whether there have been any uncured breaches;
whether there are any offsets, counterclaims, or defenses to be asserted by
that Party against the other under this Agreement; and such other information
as may be reasonably requested.
ARTICLE 17
CHOICE OF LAW
This Agreement shall be governed by and construed in accordance with
the laws of the State of New Jersey.
ARTICLE 18
RENEGOTIATION
Should any term or provision of this Agreement be found invalid by any
court or regulatory body having jurisdiction thereover, the Parties shall
immediately renegotiate in good faith such term or provision of the Agreement
to eliminate such invalidity, consistent with the intent of this Agreement.
ARTICLE 19
CONSENT NOT TO BE UNREASONABLY WITHHELD
Whenever either Party requests any consent, permission, or approval
which may be required or desired by that Party pursuant to the provisions of
this Agreement, the other Party shall not
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unreasonably withhold or postpone the grant of such consent, permission, or
approval.
ARTICLE 20
OTHER AGREEMENTS
This Agreement and the Ground Lease Agreement supersede all prior oral
and written agreements and understandings of the Parties relating to the
subject matters hereof. This Agreement and the Ground Lease Agreement
constitute the entire agreement and understanding of the Parties relating to
the subject matters hereof.
ARTICLE 21
CAPTIONS
All indices, titles, subject headings, section titles, and similar
items are provided for the purpose of reference and convenience and are not
intended to be inclusive, definitive, or to control the meaning, content, or
scope of this Agreement.
ARTICLE 22
COUNTERPARTS
This Agreement may be executed in any number of counter parts, and
each executed counterpart shall have the same force and effect as an original
instrument.
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IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to
be signed by their respective officers thereunto duly authorized as of the day
and year first set forth above.
ATTEST: COGEN TECHNOLOGIES LINDEN VENTURE, L.P.
(d/b/a COGEN TECHNOLOGIES LINDEN VENTURE,
LIMITED PARTNERSHIP)
By: COGEN TECHNOLOGIES LINDEN, LTD.
(d/b/a COGEN TECHNOLOGIES LINDEN,
LIMITED PARTNERSHIP), ITS SOLE
GENERAL PARTNER
By: RCM HOLDINGS, INC.
ITS SOLE GENERAL PARTNER
By: /s/ XXXX X. AIN
-------------------------------------
Name: Xxxx X. Ain
-------------------------------
Title: Senior Vice President
------------------------------
ATTEST: BAYWAY REFINING COMPANY
By: /s/ XXXXXX X. XXXXXXX
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
-------------------------------
Title: President
------------------------------
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EXHIBIT A
PART 1 - CALCULATION OF MONTHLY STEAM CHARGE
Definitions
-----------
F = Cogen's actual cost of fuel for the month in dollars
per million Btu, $/MMBtu. See Notes 1 and 2.
CPI(b) = Base Consumer Price Index for all Urban Consumers for
the New York-Northern New Jersey Area as computed by
the United States Department of Labor, Bureau of Labor
Statistics ("CPI"), for the month of May, 1992.
CPI(c) = Current (latest available monthly) CPI (or if such
index shall no longer be published, such other index
as the Parties shall reasonably determine to be most
nearly comparable to such index for the New York-
Northern New Jersey Area).
H = Hours in the month, Hr.
PS(1) = Price of first increment of steam, $/K lb.
PS(2) = Price of remaining steam, $/K lb.
DLP = Low-pressure (140 psig) steam discount, $/K lb.
S = Total monthly steam take, K lb.
S(1) = Total monthly steam take at price PS1, K lb.
S(2) = Total monthly steam take at price PS2, K lb.
SLP = Total monthly take of low-pressure (140 psig) steam,
K lb.
MS = Monthly steam charge, $.
Formulas
--------
PS(1) = 0.88F + 0.45 (CPI(c)/CPI(b)) (1)
PS(2) = 0.95F + 0.45 (CPI(c)/CPI(b)) (2)
DLP = 0.22F - 0.13 (3)
S(1) = S or (123 x H), whichever is less (4)
S(2) = S - S(1) (5)
MS = (S(1) x PS(1)) + (S(2) x PS(2)) - (SLP x DLP) (6)
68
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PART 2 - CALCULATION OF ANNUAL STEAM ADJUSTMENT
Definitions
-----------
F = Cogen's actual cost of fuel for the month in dollars
per million Btu, $/MMBtu. See Notes 1 and 2.
H = Hours in the month, Hr.
S = Total monthly steam take, K lb.
[DELTA]S = Difference between total monthly steam take (S) and
allowable steam take at first increment pricing (123
K lb./Hr. x H), K lb.
[sum][DELTA]S(p) = Sum of all positive [DELTA]S's for entire Annual
Period, K lb.
[sum][DELTA]S(n) = Absolute value of the sum of all negative [DELTA]S's
for entire Annual Period, K lb.
SAQ = Quantity of steam eligible for Annual Period
adjustment, K lb.
FAVG = Average of all monthly fuel costs (F) for the entire
Annual Period, $/MMBtu.
ASA = Annual Period steam adjustment, $.
Formulas
--------
[DELTA]S = S - (123 x H) for each month in Annual Period (1)
SAQ = [sum][DELTA]S(n), if [sum][DELTA]S(p) greater than
or equal to [sum][DELTA]S(n) (2A)
SAQ = [sum][DELTA]S(p), if [sum][DELTA]S(p) greater than
or equal to [sum][DELTA]S(n) (2B)
ASA = 0.07 x FAVG x SAQ (3)
69
-63-
NOTES TO EXHIBIT A
Note 1 Fuel cost will be Cogen's actual cost for fuel (as supported by
invoices) equal to the sum of all costs incurred in such month by Cogen with
respect to fuel acquired for use in the Cogeneration Facility (including fuel
commodity, transportation, and storage costs and any costs related thereto),
but such fuel cost shall not be greater than 105 percent of the Weighted
Average Cost of Gas.
Note 2 All steam volumes used in the formulas above shall equal the total
delivery to BRC of Steam as measured at Cogen's meters at the Points of
Delivery minus the volume of Steam reported by BRC as delivered to Exxon.
70
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EXHIBIT B
DESCRIPTION OF POINTS OF DELIVERY OF STEAM
71
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EXHIBIT C
PRO FORMA MONTHLY INVOICE
72
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EXHIBIT D
EXISTING PROCESS STEAM SOURCES AT THE BAYWAY REFINERY
Unit Description Typical K lbs./hr. Max. K lbs./hr.
---- ----------- ------------------ ---------------
700 psig Steam
--------------
FCBW CO Boiler #1 200 325
FCBW CO Boiler #2 170 300
150 psig Steam
--------------
7 P/S D-753 Steam Drum for E-758 A-B-C
and E-759 A-B 40 105
DSU-2 D-405 Steam Drum for E-401 A-B-C-D
and F-401 29 50
FCBW X-0 XXX #0 Xxxxxxxx Xxxx 00 00
XXXX X-00 Steam Drum for E-22 A-B-C-D 75 125
FCBW X-000 XXX #0 Xxxxxxxx Drum 15 25
FCBW E-601 Steam Gen'r Downstream COB #1 50 90
SRU-A X-0X Xxxxx Xxxx Xxxxxx 00 00
XXX-X X-0X Waste Heat Boiler 10 18
SRU-C E-101 Waste Heat Boiler 28 40
TGCU E-301 Waste Heat Boiler 3 12
50 psig Steam
-------------
SRU-A X-0X Xxxxxx Xxxxxxxxx 0 0
XXX-X X-0X Sulfur Condenser 3 8
SRU-C E-103 2nd Sulfur Condenser 4 8
SRU-C E-104 3rd Sulfur Condenser 3 8
20 psig Steam
-------------
FCBW D-8 COB Blowdown Drum 20 40
FCBW D-20 Steam Drum for E-20 A-B-C-D 21 40
73
-67-
NOTE TO EXHIBIT D
BRC may repair, maintain, modify or replace the sources listed above and such
sources shall still be considered BRC's internal sources for purposes of this
Agreement, provided that the maximum steam production figures listed above for
each source shall define the maximum amounts of steam which BRC may take from
these Exhibit D sources for purposes of determining BRC's External Steam
Requirements under Article 3.1B.
74
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EXHIBIT E
EXAMPLE OF PRO RATA ALLOCATION OF STEAM
Assume BRC sells any portion of the Bayway Refinery and twenty-four (24) months
prior to the date of such sale the average Steam supply provided by Cogen was
as follows:
High Pressure Low Pressure
Total K lbs./yr Level K lbs./yr Level K lbs./yr
--------------- --------------- ----------------
Portion of Bayway
Refinery retained
by BRC 2,274,880 1,785,680 489,200
Portion of Bayway
Refinery sold 2,000,000 1,000,000 1,000,000
--------- --------- ---------
Total 4,274,880 2,785,680 1,489,200
o Pro Rata allocation of steam rights and obligations to new owner of
portion of Bayway Refinery:
Portion Sold to New Owner = 2,000,000 = .468
------------------------- ---------
Total 4,274,880
o Pro Rata allocation of BRC's continuing rights and obligations under
Agreement:
Portion Retained by BRC = 2,274,880 = .532
------------------------- ---------
Total 4,274,880
o Pro Rata allocation of high pressure level steam rights and
obligations to new owner:
Portion Sold to New Owner = 1,000,000 = .359
------------------------- ---------
Total 2,785,680
o Pro Rata allocation of BRC's continuing rights and obligations to high
pressure level steam under Agreement:
Portion Retained by BRC = 1,785,680 = .641
------------------------- ---------
Total 2,785,680
o Pro Rata allocation of low pressure level steam rights and obligations
to new owner:
75
-69-
Portion Sold to New Owner = 1,000,000 = .672
------------------------- ---------
Total 1,489,200
o Pro Rata allocation of BRC's continuing rights and obligations to low
pressure level steam under Agreement:
Portion Retained by BRC = 489,200 = .328
----------------------- ---------
Total 1,489,200
o Pro Rata allocation results:
Allocation Allocation
Total To New Owner To BRC
----- ------------ ----------
Article 3.1A
------------
Max Supply
Oct. - May 819 K lbs./hr 383 K lbs./hr 436 K lbs./hr
Max Supply
June - Sept. 491 K lbs./hr 230 K lbs./hr 261 K lbs./hr
Max Upset/Emerg.
Supply
June - Sept. 819 K lbs./hr 383 K lbs./hr 436 K lbs./hr
Article 3.1B
------------
Annual External
Steam Reqmts. 717,444 K lbs. 348,385 K lbs. 369,059 K lbs.
Article 3.1D
------------
Max Rate
Oct. - May 573 K lbs./hr 269 K lbs./hr 304 K lbs./hr
Max Rate
June - Sept. 328 K lbs./hr 153 K lbs./hr 175 K lbs./hr
Article 3.1E
------------
External Steam
Reqmts. for 6
month period 358,722 K lbs. 167,882 K lbs. 190,840 K lbs
Reduced Steam
Obligation 655 K lbs./hr 307 K lbs./hr 348 K lbs./hr
Max Sale to
other Customers 164 K lbs./hr 77 K lbs./hr 87 K lbs./hr
Article 3.4
------------
High Pressure
Level Steam 581 K lbs./hr 208 K lbs./hr 373 K lbs./hr
Low Pressure
Level Steam 374 K lbs./hr 252 K lbs./hr 122 K lbs./hr
Article 11.2D
------------
Annual Steam
Reqs. 258,280 K lbs 120,875 K lbs 137,405 K lbs
Exhibit A
------------
Number "123" 123 57 66
76
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EXHIBIT F
PORTIONS OF THE BAYWAY REFINERY
NOT SUBJECT TO PRO RATA ALLOCATION
77
-71-
EXHIBIT G-1
ASSUMPTION AGREEMENT
[Date]
_______________, a _____________ corporation (the "Assignee"),
hereby declares, covenants, agrees and binds itself as follows:
(1) Except as otherwise set forth herein, capitalized terms
used herein are used with the meanings given to them in the Ground
Lease Agreement, dated as of August 1, 1990, between, Exxon
Corporation, a New Jersey corporation, and Cogen Technologies Linden
Venture, L.P., doing business in New Jersey as Cogen Technologies
Linden Venture, Limited Partnership, a Delaware limited partnership,
as amended to the date hereof and assigned by Exxon Corporation to
Bayway Refining Company, a Delaware corporation ("BRC") by an
assignment agreement dated as of April 8, 1993 and effective as of
April 8, 1993 (the "Ground Lease Agreement").
(2) The Assignee hereby (a) assumes and agrees to pay and
perform each and every duty and obligation of Cogen hereafter accruing
under the Ground Lease Agreement and the Steam Sale Agreement between
Cogen and BRC dated April 8, 1993 (the "Steam Sale Agreement"), (b)
agrees from and after the date hereof to comply with and be bound by
the terms and provisions of the Ground Lease Agreement and the Steam
Sale Agreement applicable to Cogen, (c) confirms that from and after
the date hereof it shall be deemed "Cogen" for the purposes of the
Ground Lease Agreement and the Steam Sale Agreement, and (d) agrees to
cure as soon as reasonably practicable (which, in the case of payments
due by Cogen to BRC, shall be deemed to require immediate payment by
the Assignee) all defaults of Cogen under the Ground Lease Agreement
and the Steam Sale Agreement.
(3) The Assignee hereby represents that:
(a) it is a corporation duly organized existing in good
standing under the laws of the State of __________; and
(b) it possesses all requisite power and authority to
enter into and perform this Agreement, the Ground Lease Agreement and
the Steam Sale Agreement and to carry out the transactions
contemplated herein and therein.
(4) All notices and other communications hereunder shall be
in writing (including telecopier, telegraphic, telex or cable
communication) and mailed, telecopied,
78
-72-
telegraphed, telexed, cabled or delivered if to, Bayway Refining
Company, at its address at 0000 Xxxx Xxxxxx, Xxxxxx, Xxx Xxxxxx 00000,
Attention: _______________, Telecopy No.: _____________; and if to the
Assignee, at its address at ____________________, Attention:
_______________, Telecopy No.: _____________; or, as to each such
person, at such other address as shall be designated by such person in
a written notice to such other person. All such notices and
communications shall be effective within five days (excluding
Saturdays, Sundays or legal holidays in the State of New Jersey) of
mailing, when mailed to the address specified above, postage prepaid,
and upon receipt of an answer back or confirmation, when sent by
telecopy, telegraph, telex or cable.
(5) This Agreement shall be binding upon the Assignee, its
successors and assigns.
(6) This Agreement shall be governed by and construed in
accordance with the laws of the State of New Jersey.
IN WITNESS WHEREOF, the Assignee has caused this Agreement to
be executed as of date first above written.
[NAME OF ASSIGNEE]
By
-------------------------
Title:
Consented and Agreed by:
BAYWAY REFINING COMPANY
By
-----------------------
Title:
79
-73-
EXHIBIT G-2
ASSUMPTION AGREEMENT
[Date]
_________________, a _________________ corporation (the
"Assignee"), hereby declares, covenants, agrees and binds itself as follows:
(1) Except as otherwise set forth herein, capitalized terms
used herein are used with the meanings given them in the Ground Lease
Agreement, dated as of August 1, 1990, between Exxon Corporation, a
New Jersey corporation, and Cogen Technologies Linden Venture, L.P.,
doing business in New Jersey as Cogen Technologies Linden Venture,
Limited Partnership, a Delaware limited partnership, as amended to the
date hereof and assigned by Exxon Corporation to Bayway Refining
Company, a Delaware corporation ("BRC") by an assignment agreement
dated as of April 8, 1993 and effective as of April 8, 1993 (the
"Ground Lease Agreement").
(2) The Assignee hereby (a) assumes and agrees to pay and
perform each and every duty and obligation of Cogen hereafter accruing
under the Ground Lease Agreement and the Steam Sale Agreement between
Cogen and BRC dated April 8, 1993 (the "Steam Sale Agreement"), (b)
agrees from and after the date hereof to comply with and be bound by
the terms and provisions of the Ground Lease Agreement and the Steam
Sale Agreement applicable to Cogen, (c) confirms that from and after
the date hereof it shall be deemed "Cogen" for the purposes of the
Ground Lease Agreement and the Steam Sale Agreement, and (d) agrees to
cure as soon as reasonably practicable (which, in the case of payments
due by Cogen to BRC, shall be deemed to require immediate payment by
the Assignee) all defaults of Cogen under the Ground Lease Agreement
and the Steam Sale Agreement of which BRC has previously given written
notice to the Financier in accordance with Section 20.4C of the Ground
Lease Agreement (including, without limitation, making all payments
due by Cogen to BRC of which such notice has been given, subject to
Article 10 of the Ground Lease Agreement).
(3) The Assignee hereby represents that:
(a) it is a corporation duly organized existing in good
standing under the laws of the State of __________; and
(b) it possesses all requisite power and authority to
enter into and perform this Agreement, the
80
-74-
Ground Lease Agreement and the Steam Sale Agreement and to carry out
the transactions contemplated herein and therein.
(4) All notices and other communications hereunder shall be
in writing (including telecopier, telegraphic, telex or cable
communication) and mailed, telecopied, telegraphed, telexed, cabled or
delivered if to, Bayway Refining Company, at its address at 0000 Xxxx
Xxxxxx, Xxxxxx, Xxx Xxxxxx 00000, Attention: _______________, Telecopy
No.: _____________; and if to the Assignee, at its address at
____________________, Attention: _______________, Telecopy No.:
_____________; or, as to each such person, at such other address as
shall be designated by such person in a written notice to such other
person. All such notices and communications shall be effective within
five days (excluding Saturdays, Sundays or legal holidays in the State
of New Jersey) of mailing, when mailed to the address specified above,
postage prepaid, and upon receipt of an answerback or confirmation,
when sent by telecopy, telegraph, telex or cable.
(5) This Agreement shall be binding upon the Assignee, its
successors and assigns.
(6) This Agreement shall be governed by and construed in
accordance with the laws of the State of New Jersey.
IN WITNESS WHEREOF, the Assignee has caused this Agreement to
be executed as of date first above written.
[NAME OF ASSIGNEE]
By
-------------------------
Title:
Consented and Agreed by:
BAYWAY REFINING COMPANY
By
-----------------------
Title:
81
-75-
EXHIBIT G-3
ASSUMPTION AGREEMENT
[Date]
_________________, a _________________ corporation (the
"Assignee"), hereby declares, covenants, agrees and binds itself as follows:
(1) Except as otherwise set forth herein, capitalized terms
used herein are used with the meanings given them in the Ground Lease
Agreement, dated as of August 1, 1990, between Exxon Corporation, a
New Jersey corporation, and Cogen Technologies Linden Venture, L.P.,
doing business in New Jersey as Cogen Technologies Linden Venture,
Limited Partnership, a Delaware limited partnership, as amended to the
date hereof and assigned by Exxon Corporation to Bayway Refining
Company, a Delaware corporation ("BRC") by an assignment agreement
dated as of April 8, 1993 and effective as of April 8, 1993 (the
"Ground Lease Agreement").
(2) The Assignee hereby (a) assumes and agrees to pay and
perform each and every duty and obligation of Cogen hereafter accruing
under the Ground Lease Agreement and the Steam Sale Agreement between
Cogen and BRC dated April 8, 1993 (the "Steam Sale Agreement"), (b)
agrees from and after the date hereof to comply with and be bound by
the terms and provisions of the Ground Lease Agreement and the Steam
Sale Agreement applicable to Cogen, (c) confirms that from and after
the date hereof it shall be deemed "Cogen" for the purposes of the
Ground Lease Agreement and the Steam Sale Agreement; provided that:
(i) the Assignee shall have the right to deliver a notice
of termination of the Ground Lease Agreement and the Steam
Sale Agreement to BRC on or before the 90th day after the
date hereof and, in the event such a notice is timely
received by BRC, the Ground Lease Agreement and the Steam
Sale Agreement shall terminate on the 30th day after such
notice is received by BRC; provided, however, that the
obligations of the Assignee in the Ground Lease Agreement and
the Steam Sale Agreement in respect of any action, inaction,
event or circumstance occurring prior to the date of
termination of such agreements shall survive such termination
(subject to Article 10 of the Ground Lease Agreement and
Section (2)(iii) hereof);
(ii) by executing this Agreement, the Assignee agrees to
cure as soon as reasonably practicable (which, in the case of
payments due by Cogen to XXX,
00
-00-
xxxxx xx deemed to require immediate payment by Assignee) all
defaults of Cogen under the Ground Lease Agreement and the
Steam Sale Agreement of which BRC has previously given
written notice to the Financier in accordance with Section
20.4C of the Ground Lease Agreement (including, without
limitation, making all payments due by Cogen to BRC of which
such notice has been given, subject to Article 10 of the
Ground Lease Agreement and Section (2)(iii) hereof);
(iii) if the Assignee shall exercise the right to
terminate the Ground Lease Agreement and the Steam Sale
Agreement pursuant to Section (2)(i) hereof, the aggregate
liability of the Assignee to BRC in respect of its
obligations hereunder and under the Ground Lease Agreement
and the Steam Sale Agreement, whether arising pursuant to the
provisions of such agreements or by operation of law, as to
all matters provided for in such agreements, together with
the aggregate of all amounts paid pursuant to all letters of
credit issued as contemplated in Section 10.8 of the Ground
Lease Agreement, shall not in any event exceed $10,000,000 in
respect of any action, inaction, event or circumstance
occurring prior to the date of termination of the Ground
Lease Agreement and the Steam Sale Agreement; and
(iv) it is expressly acknowledged and agreed that BRC
shall retain all of its rights under the Ground Lease
Agreement and the Steam Sale Agreement, including without
limitation, the right to terminate either such agreement as
provided by the terms thereof, including, without limitation,
the right to terminate either such agreement in respect of an
uncured payment default thereunder even if the Assignee has
paid to BRC an aggregate of $10,000,000 or more.
(3) The Assignee hereby represents that:
(a) it is a corporation duly organized existing in good
standing under the laws of the State of __________; and
(b) it possesses all requisite power and authority to
enter into and perform this Agreement, the Ground Lease Agreement and
the Steam Sale Agreement and to carry out the transactions
contemplated herein and therein.
(4) All notices and other communications provided for herein
shall be in writing (including telecopier, telegraphic, telex or cable
communication) and mailed, telecopied, telegraphed, telexed, cabled or
delivered if to, Bayway Refining Company, at its address at 0000 Xxxx
Xxxxxx,
00
-00-
Xxxxxx, Xxx Xxxxxx 00000, Attention: _______________,
Telecopy No.: _____________; and if to the Assignee, at its
address at ____________________, Attention: _______________,
Telecopy No.: _____________; or, as to each such person, at
such other address as shall be designated by such person in
a written notice to such other person. All such notices and
communications shall be effective within five days
(excluding Saturdays, Sundays or legal holidays in the State
of New Jersey) of mailing, when mailed to the address
specified above, postage prepaid, and upon receipt of an
answerback or confirmation, when sent by telecopy,
telegraph, telex or cable.
(5) This Agreement shall be binding upon the Assignee, its
successors and assigns.
(6) This Agreement shall be governed by and construed in
accordance with the laws of the State of New Jersey.
IN WITNESS WHEREOF, the Assignee has caused this Agreement to
be executed as of date first above written.
[NAME OF ASSIGNEE]
By
-------------------------
Title:
Consented and Agreed by:
BAYWAY REFINING COMPANY
By
-----------------------
Title:
84
-78-
EXHIBIT H
RECOGNITION AGREEMENT
85
-79-
EXHIBIT I
CONSENT TO ASSIGNMENT
CONSENT TO ASSIGNMENT, dated as of ________ __, ____, by Bayway
Refining Company, a Delaware corporation ("BRC"), in favor of
__________________ (the "Lender"), under that certain
_____________________________, dated as of ________ __, ____ (the "Loan
Agreement"), among Cogen Technologies Linden Venture, L.P., doing business in
New Jersey as Cogen Technologies Linden Venture, Limited Partnership, a
Delaware limited partnership ("Cogen"), and the Lender.
WHEREAS, BRC has been informed that pursuant to the Loan Agreement,
the Lender has agreed to make certain loans to Cogen to refinance the loans
made to Cogen for the construction of the Cogeneration Facility (as hereinafter
defined); and
WHEREAS, the term "Financier" in the Steam Sale Agreement (as
hereinafter defined) includes any person providing funds for the refinancing or
taking out of any loans made to Cogen for the construction of the Cogeneration
Facility and the nominees or designees of any such persons; and
WHEREAS, BRC has been informed that Cogen has assigned to the Lender
Cogen's rights, title and interest in the Steam Sale Agreement as collateral
security for, among other things, Cogen's obligations under the Loan Agreement;
NOW, THEREFORE, in consideration of the premises and for other good
and valuable consideration, the receipt of which is acknowledged, the parties
hereto agree as follows:
ARTICLE I
DEFINITIONS
1.01. Defined Terms. Unless the context shall otherwise require and
except as otherwise specified herein, capitalized terms used herein shall have
the meanings assigned to them in the Agreement, dated as of April 8, 1993,
between Cogen and BRC for the sale of steam (the "Steam Sale Agreement")
attached as Schedule A hereto.
86
-80-
ARTICLE II
CONSENT TO ASSIGNMENT
2.01. Consents. BRC hereby consents to (A) the assignment by Cogen to
the Lender of Cogen's right, title and interest in the Steam Sale Agreement,
which is attached hereto as Schedule A and made a part hereof (the right, title
and interest of Cogen in the Steam Sale Agreement being hereinafter referred to
as the "Assigned Rights") as collateral security, and (B) agrees that the
Lender is the Financier recognized by BRC for purposes of the Steam Sale
Agreement and as such, shall have all of the rights of a Financier under the
Steam Sale Agreement until such time as BRC is notified pursuant to the Steam
Sale Agreement that the Lender is no longer to be the Financier recognized by
BRC thereunder.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.01. Assurance. BRC agrees and confirms to the Lender, as security
assignee of the Assigned Rights, that on the date hereof, the Steam Sale
Agreement has not been terminated or modified in contravention of Section 16.7G
thereof.
3.02. Representations and Warranties. BRC repeats and reaffirms for
the benefit of the Lender as security assignee of the Assigned Rights the
representations and warranties made in Section 9.1 of the Steam Sale Agreement.
87
-81-
ARTICLE IV
MISCELLANEOUS
4.01. Severability. If any provision of this Consent to Assignment
shall be held to be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
4.02. Governing Law. This Consent to Assignment shall be governed by
and construed in accordance with the laws of the State of New Jersey.
4.03. Headings. The headings hereof are for convenience only and are
not intended to affect the meaning of interpretation of this Consent to
Assignment.
4.04. Successors and Assigns. This Consent to Assignment shall be
binding upon, inure to the benefit of, and be enforceable by, BRC and the
Lender and their respective successors and assigns.
IN WITNESS WHEREOF, the undersigned has caused this Consent to
Assignment to be duly executed by its officer thereunto duly authorized as of
the day and year first above written.
BAYWAY REFINING COMPANY
By:
-------------------------------
Title:
----------------------------
Address: 0000 Xxxx Xxxxxx
Xxxxxx, Xxx Xxxxxx 00000
Attention:
Telecopy:
88
-82-
SCHEDULE A TO CONSENT TO ASSIGNMENT
[Copy of Steam Sale Agreement]