1
EXHIBIT 10.102
EXECUTION COPY
AGREEMENT
BETWEEN
CAMDEN COGEN, L.P.
(d/b/a CAMDEN COGEN LIMITED PARTNERSHIP)
AND
PNEUMO ABEX CORPORATION (d/b/a MAFCO WORLDWIDE CORPORATION)
FOR THE SALE OF STEAM
AS OF OCTOBER 25, 2000
2
TABLE OF CONTENTS
Page
RECITALS....................................................................................... 1
SECTION 1 DEFINITIONS............................................................................1
1.1 General Definitions...........................................................1
1.2 Interpretation................................................................4
SECTION 2 CONSTRUCTION AND MAINTENANCE OF THE FACILITY...........................................4
2.1 Construction..................................................................4
2.2 Operation and Maintenance after Completion of Construction....................4
SECTION 3 SALE OF STEAM..........................................................................5
3.1 General.......................................................................5
3.2 Scheduling....................................................................7
3.3 Specifications of Steam.......................................................7
SECTION 4 COST OF STEAM..........................................................................7
4.1 Monthly Steam Charge..........................................................7
SECTION 5 MEASUREMENT AND METERING...............................................................7
5.1 Units of Measurement..........................................................7
5.2 Seller's Measuring Equipment..................................................7
5.3 Buyer's Measuring Equipment...................................................7
5.4 Alternative Means of Measurement..............................................8
5.5 Testing and Corrections.......................................................8
5.6 Maintenance...................................................................9
5.7 Measurement/Notice............................................................9
SECTION 6 BILLING AND RECORDS....................................................................9
6.1 Billing.......................................................................9
6.2 Payment.......................................................................9
6.3 Records.......................................................................9
SECTION 7 TAXES.................................................................................10
SECTION 8 REPRESENTATIONS.......................................................................10
8.1 Representations of Buyer.....................................................10
8.2 Representations of Seller....................................................10
SECTION 9 FORCE MAJEURE.........................................................................11
9.1 Definition...................................................................11
9.2 Burden of Proof..............................................................11
9.3 Condition....................................................................11
9.4 Labor Disputes...............................................................12
i
3
SECTION 10 TERM.................................................................................12
10.1 Term.........................................................................12
10.2 Expiration...................................................................12
SECTION 11 LIABILITY............................................................................12
11.1 Limitation on Liability for Damages..........................................12
11.2 Damages......................................................................13
SECTION 12 INSURANCE............................................................................13
SECTION 13 NONWAIVER............................................................................13
SECTION 14 NOTICE AND SERVICE...................................................................13
14.1 Notice.......................................................................13
14.2 Date of Service..............................................................13
14.3 Addresses....................................................................14
SECTION 15 NO RESALE OF STEAM...................................................................14
SECTION 16 AMENDMENTS...........................................................................14
SECTION 17 SUCCESSORS AND ASSIGNS...............................................................14
17.1 Assignment by Buyer..........................................................14
17.2 Assignment by Seller.........................................................15
17.3 Continuing Obligations.......................................................15
SECTION 18 CHOICE OF LAW........................................................................15
SECTION 19 RENEGOTIATION........................................................................15
SECTION 20 CONSENT NOT TO BE UNREASONABLY WITHHELD..............................................15
SECTION 21 DISPUTE RESOLUTION...................................................................15
21.1 Dispute Resolution...........................................................15
21.2 Remedies for Breach of Agreement.............................................15
SECTION 22 OTHER AGREEMENTS.....................................................................16
SECTION 23 CAPTIONS.............................................................................16
SECTION 24 COUNTERPARTS.........................................................................16
ii
4
AGREEMENT
BETWEEN
CAMDEN COGEN, L.P.
(d/b/a CAMDEN COGEN, LIMITED PARTNERSHIP)
AND
PNEUMO ABEX CORPORATION
(d/b/a MAFCO WORLDWIDE CORPORATION)
FOR THE SALE OF STEAM
This AGREEMENT is made as of October 25, 2000, by and between
Camden Cogen, L.P., doing business as Camden Cogen, Limited Partnership, a
Delaware limited partnership ("Seller"), and Pneumo Abex Corporation, a Delaware
corporation d/b/a Mafco Worldwide Corporation ("Buyer," and collectively the
"Parties").
RECITALS
WHEREAS, Seller owns and operates a cogeneration facility
located in Camden,
New Jersey for the production of electricity and steam (the
"Cogeneration Facility");
WHEREAS, Buyer owns, operates and maintains a plant ("Buyer's
Plant") in Camden,
New Jersey, which uses steam for industrial purposes and
Buyer desires to purchase steam from Seller;
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, intending to be legally bound,
hereby agree as follows:
SECTION 1
DEFINITIONS
1.1 General Definitions. The following terms when used herein shall
have the following meanings:
(a) "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.
(b) "Agreement" means this contract, including all exhibits
and amendments thereto that may be made from time to time.
5
(c) "Buyer's Average Price of Fuel" means, for any Month, an
average of each of the daily mean wholesale prices for the petroleum product
known as "No. 6-0.7% Sulfur Max" fuel oil, for deliveries in barge load
quantities in New York Harbor, as published by Standard & Poor's ▇▇▇▇▇'▇ in
▇▇▇▇▇'▇ Oilgram Price Report plus transportation and related services costs and
taxes and reflecting a conversion factor of 150,000 Btu/gallon, as expressed in
the following formula:
Buyer's Average Price of Fuel ($/mmBtu) = [(x + y) / k] (1,000,000)
Where:
x = an average of each of the daily mean wholesale prices for "No. 6-0.7% Sulfur
Max" fuel oil, for deliveries in barge load quantities in New York Harbor, as
published by Standard & Poor's ▇▇▇▇▇'▇ in ▇▇▇▇▇'▇ Oilgram Price Report
(expressed in $/gallon, which is equal to the published price expressed in
$/barrel divided by 42).
y = $0.06/gallon (comprising gross receipt and franchise taxes and
transportation and related services costs).
k, the conversion factor = 150,000 Btu/gallon.
(d) "Buyer's Avoided Fuel Cost per k-lb." means, for any
Month, an amount determined by taking the product of (i) the Heat Rate (in
mmBtu/k-lb.) and (ii) Buyer's Average Price of Fuel ($/mmBtu).
(e) "Buyer's Plant" has the meaning set forth in the recitals
hereto.
(f) "Buyer's Steam Requirement" means Buyer's requirements for
steam for use during Buyer's normal production times, at its plant in Camden,
New Jersey, which is currently estimated to average 27,000 lbs. per hour, and
which may fluctuate from time to time as detailed in Section 3.1(b) hereof.
(g) "Btu" means British Thermal Unit and "mmBtu" means one
million Btus.
(h) "Cogeneration Facility" means the cogeneration facility
owned by Seller in Camden,
New Jersey.
(i) "Cogenerated Steam" means steam delivered to Buyer by
Seller through Seller's steam line, as measured at Seller's meter at the Point
of Delivery of Steam.
(j) "Facilities" means the facilities required for the
delivery of Cogenerated Steam to Buyer, 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 Buyer's Plant to the Point of Delivery of
Steam in order to effectuate the purposes of this Agreement.
2
6
(k) "Fuel" means "No. 6-0.7% Sulfur Max" fuel oil which for
purposes of this Agreement is used as a proxy for "No. 6-0.5% Sulfur Max" fuel
oil, the fuel which is normally utilized in Buyer's primary boilers.
(l) "Force Majeure" has the meaning set forth in Section 9.1.
(m) "Governmental Authority" means any federal, state or local
governmental entity exercising jurisdiction over rates, services and/or
operations subject to this Agreement.
(n) "Governmental Authorizations" means any and all licenses,
permits, certificates and other authorizations required by applicable federal,
state, or local law.
(o) "Heat Rate" means 1.268 mmBtu/k-lbs.
(p) "Month" means a 30 day period, and to the extent any
calculations in this Agreement are based on a month containing more or less than
30 days, the amounts calculated herein shall be prorated accordingly.
(q) "k-lbs." means 1,000 pounds of steam mass.
(r) "Monthly Steam Charge" has the meaning set forth in
Section 4.1.
(s) "Party" means Seller or Buyer, as the case may be, and its
permitted successors and assigns and "Parties" means both Buyer and Seller.
(t) "Point of Delivery of Steam" means the point or points
where the Steam Supply System connecting Seller's Cogeneration Facility to
Buyer's Plant connects to the Facilities at Buyer's property line.
(u) "Prudent Steam Industry Practices" shall mean those
practices, methods, acts, techniques, standards and equipment, as changed from
time to time, that are then generally accepted by the steam industry and
commonly used in prudent steam industry engineering and operations to operate
and maintain equipment lawfully, safely, dependably and economically, and as
would have been (i) expected to accomplish the desired result in a manner
consistent with applicable laws, applicable governmental permits, reliability,
safety, environmental protection, economy and expediency and (ii) implemented
using that degree of skill, diligence and foresight which would reasonably and
ordinarily be expected from a skilled and experienced operator complying with
all applicable laws and engaged in the same kind of undertaking, as applicable
to units of the size and service of the Seller's Cogeneration Facility. Prudent
Steam Industry Practices is not intended to be limited to the optimum practice,
methods or acts to the exclusion of all others, but rather to the acceptable
practice, methods or acts generally accepted in the region where Seller's
Cogeneration Facility is located.
(v) "psig" means pound per square inch gauge.
(w) "Steam Supply System" means the facilities constructed,
owned and operated by Seller to provide Cogenerated Steam from the Cogeneration
Facility to the Point of Delivery of Steam.
3
7
1.2 Interpretation. Unless the context otherwise requires: a term has
the meaning assigned to it in this Agreement; "including" means including,
without limitation; "or" is not exclusive; words in the singular include the
plural and words in the plural include the singular; and references to sections,
articles and schedules refer to the sections and articles of and schedules to
this Agreement unless otherwise expressly indicated, and references to the
provisions "herein" or "hereof" and other similar references refer to this
Agreement in its entirety.
(a) The Parties acknowledge that each Party and its counsel
have reviewed and revised this Agreement. No provision of this Agreement shall
be interpreted in favor of, or against, either party hereto by reason of the
extent to which any such party or its counsel participated in the drafting
thereof.
SECTION 2
CONSTRUCTION AND MAINTENANCE OF THE FACILITY
2.1 Construction. During the construction of the Steam Supply System
and the Facilities:
(a) Seller shall, at its expense, be responsible for the
design and construction of the Steam Supply System and the Facilities. The
design of the Facilities shall be based on good engineering practices and shall
be subject to the review and approval of Buyer. Buyer shall be deemed to have
approved Seller's design of the Facilities if Buyer has not notified Seller of
any objections or of any reasonable changes requested by Buyer within ten (10)
days of Seller's delivery of same to Buyer. Seller shall use reasonable efforts
to maintain the construction schedule for such Facilities in Exhibit A.
(b) Buyer shall provide the following construction services to
and for the benefit of Seller at Buyer's expense:
1. Full access to Buyer's site and roads as necessary for the
construction of the Steam Supply System and the Facilities.
Seller shall use Buyer's site and roads so as not to
unreasonably interfere with Buyer's operations; and
2. Access to drawings and diagrams of Buyer's property and
Buyer's Plant as reasonably requested, in a timely manner.
(c) Buyer shall use reasonable efforts to ensure that
employees of Buyer do not interfere with the construction of the Steam Supply
System and the Facilities.
(d) Buyer agrees to grant to Seller an easement (i) in, on,
over or under its property and (ii) to the full extent of Buyer's interest which
may be granted to Seller in any easements, licenses or permits of Buyer in, on,
over or under the property of others which is reasonably necessary to allow
Seller to construct the Steam Supply System and the Facilities.
2.2 Operation and Maintenance after Completion of Construction. After
completion of construction of the Steam Supply System and Facilities:
4
8
(a) Seller shall sell to Buyer and Buyer shall purchase from
Seller the Facilities for the purchase price of one dollar ($1.00) as soon as
practicable after the completion, including satisfactory testing, of the
Facilities.
(b) Seller shall maintain the Steam Supply System in good
operating condition consistent with Prudent Steam Industry Practices, at
Seller's sole expense.
(c) Buyer shall maintain the Facilities, or cause the
Facilities to be maintained, in good operating condition at Buyer's sole
expense.
(d) Buyer shall have operational control of the Facilities on
Buyer's property and Buyer and Seller shall agree upon a method of coordinating
steam deliveries through the Facilities; provided however that should Buyer and
Seller agree upon the need for an additional meter located at or near the Point
of Delivery of Steam, Seller shall design, operate, maintain and own all
measuring equipment installed on Buyer's property pursuant to Section 5.2
hereof.
(e) (i) Buyer shall grant all easements necessary to provide
Seller access, including but not limited to the right of ingress and egress for
pedestrian, vehicular and other traffic as Seller may reasonably require, to any
areas of Buyer's property for the alteration, relocation or reconstruction of
the Steam Supply System and the Facilities (including the related construction
and installation of any replacement facilities), as may be necessary or
desirable to maintain a steam line connection between the Cogeneration Facility
and the Buyer's Plant as well as access to any future measurement equipment
described in Section 5.2 hereof, and all easements granted under this Section
2.2(e) shall be in recordable form and Buyer shall cooperate with Seller to have
such easements recorded. As soon as practicable after the completion of any such
replacement facilities, to the extent they are within Buyer's property, shall
become the Facilities for purposes of this Agreement and Seller shall sell such
replacement facilities to Buyer for a nominal fee.
(ii) Buyer agrees that Seller shall have the right,
and shall grant Seller such easements as may be necessary, in accordance with
the first paragraph of this Section 2.2(e), to relocate the steam line on
Buyer's property, at Seller's sole expense, as may be required in connection
with a change in ownership or operations of Buyer or Seller, and that any and
all easements granted to Seller by Buyer shall survive the transfer of ownership
of Buyer's property encumbered by such easements. Buyer agrees that it shall use
its best efforts to assist Seller in obtaining a consent and subordination
agreement from any lender or other person holding a senior interest in any of
Buyer's property encumbered by such easements, which consent and subordination
agreements shall give Seller the senior interest in such property.
SECTION 3
SALE OF STEAM
3.1 General.
(a) Commencing on the first day following notice by Seller
that it has completed construction and testing of the Steam Supply System and
Facilities, which is presently estimated to be December 1, 2000, Buyer shall
purchase and accept from Seller and Buyer shall
5
9
use in its own industrial processes Cogenerated Steam delivered to Buyer at the
Points of Delivery of Steam, an amount of Cogenerated Steam equal to Buyer's
Steam Requirement.
(b) (i) Subject to any remaining obligations of Seller to
provide steam to Camden Paperboard Corporation pursuant to that certain Energy
Purchase Agreement between Seller and Camden Paperboard Corporation dated as of
December 18, 1989, and as amended on March 5, 1992, Seller agrees to provide
Buyer with all of Buyer's Steam Requirement up to but not exceeding 60 k-lbs.
per hour (measured as an instantaneous rate) whenever Seller's Cogeneration
Facility is operating and capable of producing Cogenerated Steam. Buyer shall be
required to take and use any and all Cogenerated Steam made available by Seller
at the Point of Delivery of Steam up to but not exceeding Buyer's Steam
Requirement provided such delivery of Cogenerated Steam does not unduly
interfere with Buyer's operations. Seller shall provide notice to Buyer of any
material change in the status of Seller's obligations to provide steam pursuant
to the Energy Purchase Agreement described in this subsection.
(ii) As available and upon request of Buyer, Seller
may supply Buyer with Cogenerated Steam in excess of 60 k-lbs. per hour up to a
maximum of 75 k-lbs. per hour provided Seller is not materially adversely
affected under any existing contractual agreement of Seller to sell electricity
or steam to third parties.
(iii) If at any time there has been a Material Change
in Seller's obligations, as they exist as of the date hereof, to provide
electricity pursuant to that certain Power Purchase and Interconnection
Agreement between Public Service Electric and Gas Company ("PSE&G") and Seller
dated as of April 15, 1988, and as amended on June 12, 1990 and as further
amended and transmitted to the
New Jersey Board of Public Utilities on August
21, 1990, then Seller may, at its sole discretion and upon not less than thirty
(30) days notice, terminate without any further obligation the delivery of
Cogenerated Steam to Buyer and the Parties shall meet to determine if mutually
agreeable terms can be negotiated for the sale and purchase of Cogenerated Steam
thereafter. As used herein, a Material Change will be deemed to occur when there
is any change in PSE&G's right to direct the dispatch of the Cogeneration
Facility for the production of electricity or if Seller is no longer required to
or determines to no longer maintain the Qualifying Status of the Cogeneration
Facility as a qualifying cogeneration facility pursuant to the Public Utility
Regulatory Policies Act of 1978 ("PURPA") or PURPA is no longer in effect or
applicable to the Cogeneration Facility.
(iv) The Parties anticipate that Buyer's Steam
Requirement will generally fluctuate within the ranges shown below in TABLE 1 on
a weekly basis.
TABLE 1
Range
DAY DURATION (hourly average)
------------------- ------------------- ----------------------
Monday-Friday 24 hrs. 10-60 k-lbs.
Saturday 24 hrs. 0-30 k-lbs.
Sunday 24 hrs. 0-30 k-lbs.
6
10
3.2 Scheduling. Commencing on the first day of the Month following the
first delivery of Cogenerated Steam under this Agreement, Seller shall, at any
time upon Buyer's request, give Buyer its best estimate of the availability for
delivery of Cogenerated Steam from Seller to Buyer. Such estimates shall be for
Buyer's convenience only, and Seller shall not in any way be bound by such
estimates, which shall be subject to change without notice. Seller shall advise
Buyer of any significant changes in the expected availability for delivery of
such Cogenerated Steam as soon as reasonably practicable.
3.3 Specifications of Steam. All Cogenerated Steam shall meet the
specifications set forth on Exhibit 1 hereto. Seller shall treat the
demineralized boiler feed water normally used in the production of Cogenerated
Steam only with such chemicals as set forth in Exhibit 2 hereof.
SECTION 4
COST OF STEAM
4.1 Monthly Steam Charge. Buyer shall pay to Seller a monthly steam
charge ("Monthly Steam Charge") for Cogenerated Steam delivered to Buyer in any
Month as follows:
(a) For each of the first 10,000 k-lbs. of Cogenerated Steam,
an amount equal to fifty percent (50%) of Buyer's Avoided Fuel Cost per k-lb.;
(b) For each of the next 3,000 k-lbs. of Cogenerated Steam, an
amount equal to twenty-five percent (25%) of Buyer's Avoided Fuel Cost per
k-lb.;
(c) For each of the next 9,000 k-lbs. of Cogenerated Steam, an
amount equal to zero percent (0%) of Buyer's Avoided Fuel Cost per k-lb.; and
(d) For each additional k-lb. of Cogenerated Steam in excess
of 22,000 k-lbs., an amount equal to fifty percent (50%) of Buyer's Avoided Fuel
Cost per k-lb.
SECTION 5
MEASUREMENT AND METERING
5.1 Units of Measurement. For the purposes of this Agreement,
Cogenerated Steam shall be measured in k-lbs. of steam mass flow.
5.2 Seller's Measuring Equipment. Seller shall use existing measuring
equipment at the Seller's Cogeneration Facility less a mutually agreed upon
factor for line loss, if any. Seller shall design, install, operate, maintain,
and own all measuring equipment necessary for an accurate determination of the
quantity of Cogenerated Steam delivered at the Point of Delivery of Steam. Any
such measurement equipment shall be owned by Seller and shall be of a type
acceptable to both parties. Except as provided in Section 5.4, Seller's meters
shall be used for quantity measurements under this Agreement.
5.3 Buyer's Measuring Equipment. Buyer may design, install, operate,
maintain, and own, at its sole expense, steam measuring equipment, provided that
Buyer shall not interfere with Seller's Steam Supply System or with Seller's
measuring equipment.
7
11
5.4 Alternative Means of Measurement. In the event Seller's measuring
equipment is out of service or registers inaccurately, measurement shall be
determined by:
(a) In the event that Seller's metering equipment is out of
service, by using the registration of any other meter or meters of
Seller, if installed and accurately registering; or
(b) In the absence of an installed and accurately registering
primary or alternate meter of Seller, measurement may be determined
using the registration of any meter or meter of Buyer if such is
installed and accurately registering; or
(c) In the absence of both an installed and accurately
registering meter of Seller and Buyer as set forth in (a) and (b),
above, estimating by reference to quantities measured during periods
under similar conditions when Seller'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 Buyer's operating
records for the period in question.
5.5 Testing and Corrections.
(a) Testing. The accuracy of Seller's measuring equipment
shall be tested and verified by Seller at semi-annual intervals in Buyer's
presence. The calibration procedure to be used under this Section 5.5 shall be
consistent with the meter manufacturer's recommendations and accomplished prior
to the ▇▇▇▇ ▇▇▇▇▇▇ first delivers Cogenerated Steam to Buyer. 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. Seller shall bear the cost of the
testing and any required adjustments of Seller's measuring equipment done at
semi-annual intervals. In the event that Buyer requests a testing of Seller's
measuring equipment at other than semi-annual intervals, Buyer 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%),
previous recordings of such equipment shall be considered accurate in computing
deliveries of Cogenerated 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%), 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 Seller shall promptly send
to Buyer, pursuant to Section 6, 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.
8
12
5.6 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.
5.7 Measurement/Notice. Commencing on or about the first day of the
second calendar month subsequent to the date Seller first sells Cogenerated
Steam to Buyer and thereafter on the first day of each calendar month during the
term of this Agreement, Seller shall cause Seller's measuring equipment to be
read, determine the quantities of Steam delivered to Buyer during the
immediately preceding calendar month, and promptly notify Buyer in writing of
such quantities.
SECTION 6
BILLING AND RECORDS
6.1 Billing.
(a) Monthly ▇▇▇▇ to Buyer. On or before the fifteenth (15th)
day of each month, Seller shall prepare and deliver to Buyer an invoice setting
forth the Monthly Steam Charge as set forth in Section 4.1 for the preceding
month. Such invoice shall also set forth the other information called for in
Exhibit 3 and shall be in the form shown in Exhibit 3. If Seller from time to
time does not know Buyer's Avoided Fuel Cost for purposes of Exhibit 3
calculations for the month in question when Seller prepares an invoice pursuant
to this Section 6.1(b), Seller may estimate such cost using all available data.
To the extent that an estimate is provided and used for purposes of
determination of Buyer's Avoided Fuel Cost per k-lb. in Exhibit 3, Seller shall
determine the actual Buyer's Avoided Fuel Cost for that Month as soon thereafter
as practical and compute Buyer's Avoided Fuel Cost per k-lb. Seller shall make
the appropriate adjustment in the following Month's invoice.
(b) Other Adjustments. Seller shall promptly prepare and
deliver to Buyer an invoice setting forth any adjustments for discrepancies in
billing identified through meter verifications or for any other reason which
would result in reimbursement of billed amounts to Buyer or additional payments
by Buyer to Seller.
6.2 Payment. Buyer shall, within ten (10) days of the receipt of
Seller's invoice setting forth the monthly ▇▇▇▇ to Buyer pursuant to Section
6.1(a), pay Seller for all amounts billed. Reimbursements or additional payments
pursuant to Section 6.1(b) shall be paid within thirty (30) days of receipt of
the billing adjustment invoice.
6.3 Records. Both Seller and Buyer shall keep all invoices, receipts,
charts, computer printouts, punchcards, magnetic tapes, and other records
related to the volume and price of Cogenerated Steam sales made under this
Agreement, including Buyer's avoided fuel cost 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.
9
13
SECTION 7
TAXES
Buyer shall be solely responsible for any sales, use, gross
receipts, transfer, and similar taxes that may be imposed on the sale of
Cogenerated Steam by Seller to Buyer under this Agreement. Seller shall be
solely responsible for any taxes that may be imposed on the manufacture of steam
by Seller under this Agreement.
SECTION 8
REPRESENTATIONS
8.1 Representations of Buyer. Buyer hereby represents and warrants to
Seller as follows:
(a) Buyer is a corporation duly organized and existing in good
standing under the laws of the State of Delaware and is duly qualified
to do business in the State of
New Jersey.
(b) Buyer possesses all requisite power and authority to enter
into and perform this Agreement and to carry out the transactions
contemplated herein, its execution and delivery of this Agreement has
been duly authorized and this Agreement constitutes a legal, valid
binding obligation enforceable against it in accordance with its
respective terms.
(c) No suit, action or arbitration, or legal, administrative
or other proceeding is pending against Buyer or its Affiliates that
would affect the validity or enforceability of this Agreement or the
ability of Buyer to materially fulfill its commitments hereunder.
(d) Neither the execution nor delivery by Buyer of this
Agreement conflicts with, results in a breach of or constitutes a
default under (i) any of the terms, conditions or provisions of its
certificate or articles of incorporation, articles of association,
limited liability company or partnership agreement, by-laws or other
constituent documents, (ii) any applicable, federal, state or local
law, or any order, rule or regulation of any Governmental Authority
having jurisdiction over it or its properties or by which it or its
properties may be bound, or (iii) any agreement or instrument to which
it is a Party or by which it or any of its properties may be bound.
8.2 Representations of Seller. Seller hereby represents and warrants to
Buyer as follows:
(a) Seller 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.
(b) Seller possesses all requisite power and authority to
enter into and perform this Agreement and to carry out the transactions
contemplated herein, its execution and delivery of this Agreement has
been duly authorized and this Agreement
10
14
constitutes a legal, valid binding obligation enforceable against it in
accordance with its respective terms.
(c) No suit, action or arbitration, or legal, administrative
or other proceeding is pending against Seller or its Affiliates that
would affect the validity or enforceability of this Agreement or the
ability of Seller to materially fulfill its commitments hereunder.
(d) Neither the execution nor delivery by Seller of this
Agreement conflicts with, results in a breach of or constitutes a
default under (i) any of the terms, conditions or provisions of its
certificate or articles of incorporation, articles of association,
limited liability company or partnership agreement, by-laws or other
constituent documents, (ii) any applicable, federal, state or local
law, or any order, rule or regulation of any Governmental Authority
having jurisdiction over it or its properties or by which it or its
properties may be bound, or (iii) any agreement or instrument to which
it is a Party or by which it or any of its properties may be bound.
SECTION 9
FORCE MAJEURE
9.1 Definition. Except for the obligations of the Parties to make
payments when due under this Agreement, either Party shall be excused from
delays in performance or failures to perform its obligations hereunder and shall
not be liable to the unaffected Party 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, any unforeseen and sudden failure of
equipment at either Buyer's Plant or the Cogeneration Facility, 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.
9.2 Burden of Proof. The burden of proof as to whether a Force Majeure
event or condition has occurred shall be upon the affected Party.
9.3 Condition. If a Party relies on Force Majeure as a basis for being
excused from performance of its obligations under this Agreement, then the
affected Party shall:
(a) Provide prompt oral notice to the unaffected 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;
11
15
(d) Exercise all reasonable efforts to mitigate or limit
damages to the unaffected Party; and
(e) Provide prompt oral notice to the unaffected Party,
confirmed promptly in writing, of the cessation of the event or
condition giving rise to its excusal from performance.
9.4 Labor Disputes. This Section 9 shall not require the settlement of
any strike, walkout, lockout, or other labor dispute on terms which, at the
discretion of the affected Party, are contrary to its interests. The settlement
of such labor disputes shall be at the sole discretion of the affected Party.
SECTION 10
TERM
10.1 Term. The Term of this Agreement shall be effective upon
execution, subject to any requisite approval of lenders and partners of Seller
being obtained by Seller not later than November 30, 2000, and shall continue
until March 5, 2013, unless extended by agreement of the parties. Buyer may, on
notice to Seller, terminate this Agreement without further obligation to Seller
not earlier than December 1, 2000 and not later than December 15, 2000 if, on or
before November 30, 2000 Seller shall have failed to obtain and notify Buyer
that all requisite approvals of lenders or partners of Seller have been
obtained. If Buyer exercises such right to terminate this Agreement, Seller
shall upon the presentation by Buyer of customary documentation promptly pay
Buyer all of Buyer's reasonably incurred out of pocket expenses not exceeding
fifty thousand dollars ($50,000) paid to third parties for engineering or the
procurement of equipment or both that are directly related to Buyer's
anticipated use of Cogenerated Steam pursuant to this Agreement.
10.2 Expiration. At the expiration of the initial term or a renewal
term, if applicable, this Agreement and each party's obligation(s) hereunder
shall automatically terminate as of the effective date thereof; provided,
however, expiration of this agreement shall not relieve either party from any
obligation arising under this Agreement to pay any monies due to the other party
which monetary obligation was incurred prior to the date of expiration of this
Agreement.
SECTION 11
LIABILITY
11.1 Limitation on Liability for Damages.
(a) Seller, and its officers, directors, partners, agents,
employees, Affiliates, successors and assigns shall not be liable under this
Agreement to Buyer 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.
(b) Buyer and its officers, directors, partners, agents,
employees, Affiliates, successors and assigns shall not be liable under this
Agreement to Seller 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.
12
16
11.2 Damages. If either Party breaches this Agreement, the aggrieved
Party shall be entitled to seek damages as available at law except as may be
limited pursuant to Section 11.1.
SECTION 12
INSURANCE
Each party shall provide and maintain in force and effect
during the term of this Agreement (i) commercial and general liability insurance
against claims for bodily injury and death and (ii) property insurance covering
physical loss or damage to its property, each with policy limits consistent with
customary industry standards and such party's normal practices, and (iii)
worker's compensation insurance consistent with statutory requirements.
SECTION 13
NONWAIVER
The various rights, remedies, options, and elections of Buyer
and Seller as expressed herein are cumulative, and the failure of Buyer or
Seller 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 Buyer or Seller of
any such provisions, rights, options, elections, or remedies, but the same will
continue in full force and effect.
SECTION 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, facsimile, or mailed certified or registered first class mail, postage
prepaid, properly addressed to the Party entitled to receive such notice
pursuant to Section 14.3.
14.2 Date of Service.
(a) Mail. If a notice is sent by registered or certified mail,
it shall be deemed given within three (3) days, excluding Saturdays, Sundays, or
legal holidays of the State of
New Jersey, after deposit of the same in the
United States mail, postage prepaid, except as otherwise demonstrated by a
signed receipt.
(b) Facsimile. If a notice is served by facsimile, a copy
thereof shall be promptly sent by first class mail, postage prepaid, and notice
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, except as otherwise demonstrated by signed receipt.
(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.
13
17
14.3 Addresses. Notices may be sent to the Parties at the following
addresses:
(a) Seller: Camden Cogen, L.P.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn.: General Manager
with a copy to: East Coast Power
Pennzoil Building - South Tower
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: President
(b) Buyer: Pneumo Abex Corporation d/b/a Mafco Worldwide Corporation
Third Street & Jefferson Avenue
Camden,
New Jersey 08104
Attn: Vice President - Engineering
with a copy to: M&F Worldwide Corp.
c/o MacAndrews & Forbes Holdings Inc.
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: General Counsel
or to such other and different persons or addresses as may be designated by the
Parties.
SECTION 15
NO RESALE OF STEAM
Buyer agrees that all Cogenerated Steam delivered to Buyer
from Seller pursuant to this Agreement shall be used by Buyer in its operations
at Buyer's Plant. Buyer agrees that it will not sell any Cogenerated Steam to a
third party.
SECTION 16
AMENDMENTS
No amendment or modification of the terms of this Agreement
shall be binding on either Buyer or Seller unless reduced to writing and signed
by both Parties.
SECTION 17
SUCCESSORS AND ASSIGNS
17.1 Assignment by Buyer. At any time Buyer may sell or transfer all or
any part of Buyer's Plant or Buyer's property to any Affiliate of Buyer or any
third party. If Buyer sells or
14
18
otherwise transfers all of Buyer's Plant 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.
17.2 Assignment by Seller. Seller may assign this Agreement to any
entity, if Seller sells or otherwise transfers all of the Cogeneration Facility
to such entity.
17.3 Continuing Obligations. No assignment of this Agreement by Buyer
or Seller shall operate to relieve Buyer or Seller 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.
SECTION 18
CHOICE OF LAW
This Agreement shall be governed by and construed in
accordance with the laws of the State of New Jersey.
SECTION 19
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.
SECTION 20
CONSENT NOT TO BE UNREASONABLY WITHHELD
Whenever either Party requests any consent, permission, or
approval which may be required or desired by that Party pursuant to the
provisions of this Agreement, the other Party shall not unreasonably condition
or withhold or postpone the grant of such consent, permission, or approval.
SECTION 21
DISPUTE RESOLUTION
21.1 Dispute Resolution. The Parties agree to work in good faith to
resolve any claim, demand, cause of action, dispute or controversy arising out
of or relating to this Agreement. The Parties shall refer any such dispute to
representatives of each Party's senior management for resolution.
21.2 Remedies for Breach of Agreement. To the extent that the parties
are unable to resolve any dispute consistent with Section 20.1 hereof, the
parties are free to pursue any and all remedies available at law or in equity.
15
19
SECTION 22
OTHER AGREEMENTS
This Agreement supersedes all prior oral and written
agreements and understandings of the Parties relating to the subject matters
hereof. This Agreement constitutes the entire agreement and understanding of the
Parties relating to the subject matters hereof.
SECTION 23
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.
SECTION 24
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.
16
20
IN WITNESS WHEREOF, the Parties hereto have caused this
Agreement to be signed as of the day and year first set forth above.
By: CAMDEN COGEN, L.P.
(d/b/a CAMDEN COGEN
LIMITED PARTNERSHIP)
By:
-----------------------------------
Printed Name:
-------------------------
Title:
--------------------------------
Date:
---------------------------------
PNEUMO ABEX CORPORATION (d/b/a MAFCO
WORLDWIDE CORPORATION)
By:
-----------------------------------
Printed Name:
-------------------------
Title:
--------------------------------
Date:
---------------------------------
21
EXHIBIT 1
SPECIFICATIONS FOR COGENERATION STEAM
Cogeneration Steam shall be received by Buyer at the Point of Delivery
at the following specifications subject to modification by written agreement of
the Parties:
Pressure: 300 psig (+ or - 10%)
Temperature: saturated
Seller shall incorporate in its design, and shall install at Seller's
expense, pressure reducing stations capable of reducing the steam pressure to
240 psig at the Point of Delivery, or such lower pressures as may be required in
Buyer's Plant. Such pressure reducing stations will be incorporated in the final
P&ID design of the Facilities by Seller and approved by Buyer.
22
EXHIBIT 2
LIST OF ACCEPTABLE CHEMICALS
The following is a list of the chemicals that may be used by Seller at
the Cogeneration Facility and the Facilities to treat the demineralized boiler
feed water normally used in the production and delivery of Cogenerated Steam:
Nalco 352
Nalco BT-2610
Nalco 1700
Seller may modify this list from time-to-time upon written notice to
Buyer and subject to Buyer's agreement, which agreement shall not be
unreasonably withheld, conditioned or delayed.
Seller shall provide Buyer, upon Buyer's request, with the chemical
manufacturer's published MSDS and other information available from the
manufacturer pertaining to the chemicals used in the boiler feed water.
Cogenerated Steam provided to Buyer shall not contain water treatment
chemicals in concentrations in excess of the maximum level for each such
chemical set forth in the MSDS.
23
EXHIBIT 3
[EXHIBIT WILL BE REPLACED BY SEPARATELY ATTACHED EXCEL SPREADSHEET]