EXHIBIT ▇▇.▇▇
EXECUTION COPY
ELECTRICITY SUPPLY AGREEMENT
BETWEEN
JEDI LINDEN NB, L.L.C.
AS SELLER
AND
INFINEUM USA L.P.
as Buyer
AND
TOSCO CORPORATION
DATED AS OF DECEMBER 21, 2001
ELECTRICITY SUPPLY AGREEMENT
TABLE OF CONTENTS
Page
ARTICLE 1 DEFINITIONS AND INTERPRETATION ................................2
1.1 Definitions ...................................................2
1.2 Interpretation ................................................8
ARTICLE 2 TERM ..........................................................9
2.1 Base Term of Agreement ........................................9
2.2 Renewal of Agreement ..........................................9
2.3 Condition Precedent ...........................................9
ARTICLE 3 REPRESENTATIONS, WARRANTIES AND ACKNOWLEDGEMENTS ..............9
3.1 Representations and Warranties of Buyer .......................9
3.2 Representations and Warranties of Seller .....................10
3.3 Buyer's Acknowledgement ......................................11
ARTICLE 4 DELIVERY OF ELECTRICITY ......................................11
4.1 Electricity Quality ..........................................11
4.2 Electricity Quantity .........................................11
4.3 Title: Risk of Loss ..........................................12
4.4 Back-up Electricity Arrangements .............................12
4.5 Closure or Disposition of Buyer's Facilities .................12
4.6 Sales of Electricity to Third Parties ........................12
4.7 On-site Generation Facility Status ...........................13
4.8 Purchases of Electricity from Third Parties ..................13
ARTICLE 5 PRICE FOR ELECTRICITY ........................................13
5.1 Price ........................................................13
ARTICLE 6 METERING .....................................................13
6.1 Reporting Buyer's Use of Electricity .........................13
6.2 Means of Measurement and Notice to Seller ....................13
6.3 Testing ......................................................14
6.4 Maintenance and Records ......................................15
ARTICLE 7 INVOICES AND PAYMENT .........................................16
7.1 Billing ......................................................16
7.2 Payment ......................................................16
7.3 Infineum Steam Agreement .....................................16
7.4 Disputes .....................................................16
7.5 Adjustments ..................................................16
7.6 Audit Rights .................................................17
7.7 Books and Records ............................................17
ARTICLE 8 TAXES .......................................................17
8.1 Taxes .......................................................17
ARTICLE 9 DEFAULT AND REMEDIES ........................................17
9.1 Seller Default ..............................................17
9.2 Buyer Default ...............................................18
9.3 Tosco's Right to Cure .......................................19
9.4 Remedies ....................................................19
9,5 Damages .....................................................19
9.6 Limitation on Liability for Damages .........................19
9.7 Duty to Mitigate ............................................20
ARTICLE 10 FORCE MAJEURE ...............................................20
10.1 Force Majeure ...............................................20
10.2 Farce Maleure Defined .......................................20
ARTICLE 11 INDEMNIFICATION .............................................21
11.1 Indemnification for Claims ..................................21
11.2 Notice ......................................................22
11.3 Defense .....................................................22
11.4 Survival of Indemnifications ................................22
ARTICLE 12 DISPUTE RESOLUTION ..........................................23
12.1 Dispute Resolution ..........................................23
ARTICLE 13 ASSIGNMENT ..................................................23
13.1 General .....................................................23
13.2 Permitted Assignments .......................................23
13.3 Further Assurances ..........................................23
13.4 Violations a Default: Further Remedies ......................23
ARTICLE 14 NOTICES .....................................................24
14.1 General .....................................................24
14.2 Notice to Tosco .............................................26
14.3 Changes .....................................................26
14.4 Holidays ....................................................26
ARTICLE 15 CONFIDENTIALITY .............................................26
ARTICLE 16 FURTHER ASSURANCES ..........................................28
16.1 General .....................................................28
16.2 Permits and Governmental Approvals ..........................28
16.3 Financing ...................................................28
ARTICLE 17 MISCELLANEOUS ...............................................28
17.1 Severability ................................................28
17.2 Captions, Titles and Headings ...............................28
17.3 Governing Law ...............................................29
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17.4 Non-Waiver ..........................................................29
17.5 Relationship of the Parties .........................................29
17.6 Parties in Interest .................................................29
17.7 Non-Dedication of Facility ..........................................29
17.8 Modification ........................................................29
17.9 Entire Agreement ....................................................30
17.10 Attorneys' Fees .....................................................30
17.11 Costs and Expenses ..................................................30
17.12 Counterparts ........................................................30
17.13 Survival of Obligations .............................................30
17.14 No Effect on Pending Litigation .....................................30
17.15 Electricity Price for "Infineum Steam Agreement" ....................30
EXHIBITS
Exhibit A Price of Electricity
Exhibit B HTS Price
Exhibit C Sample HTS Price Calculation
Exhibit D Delivery Point
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ELECTRICITY SUPPLY AGREEMENT
This
ELECTRICITY SUPPLY AGREEMENT (this "Agreement"), dated as of
December 21, 2001, between JEDI LINDEN NB, L.L.C. ("Seller"), a Delaware limited
liability company, INFINEUM USA L.P., a Delaware limited partnership ("Buyer"),
and TOSCO CORPORATION, a Nevada corporation ("Tosco").
WITNESSETH:
WHEREAS, Cogen Technologies Linden Venture, L.P., a Delaware limited
partnership ("Cogen") owns, operates and maintains an existing cogeneration
facility (the "Existing Plant"), which produces electricity for delivery to
Consolidated Edison Company of New York, Inc. pursuant to a Power Purchase
Agreement, executed April 14, 1989, as amended from time to time, and steam for
delivery to Buyer pursuant to an Amended and Restated Agreement for the Sale of
Steam between Cogen and Buyer, dated as of January 1, 1999 (the "Infineum Steam
Agreement");
WHEREAS, East Coast Power L.L.C., an Affiliate of Cogen ("ECP") and
Tosco Refining, L.P., an Affiliate of Tosco, entered into an Energy Services
Agreement, dated as of February 14, 2000, as amended from time to time (the
"ESA"), pursuant to which ECP would develop an approximately 172 megawatt ("MW")
cogeneration facility (the "Linden 6 Facility") adjacent to the Existing Plant
to produce electricity for sale to Tosco for use at the Bayway Refinery and to
produce additional steam for delivery to, and use by Cogen and sale by Cogen to
Bayway pursuant to an Agreement for the Sale of Steam between Cogen and Bayway
dated as of April 8, 1993 ("Bayway Steam Agreement"), as may be amended from
time to time;
WHEREAS, ECP has assigned its interest in the ESA to Seller by
instrument dated as of June 1,2000 and Tosco is the successor in interest to
Tosco Refining, L.P.;
WHEREAS, Cogen presently sells steam from the Existing Plant to Buyer
for use at Buyer's Complex pursuant to the Infineum Steam Agreement;
WHEREAS, Buyer desires to purchase Electricity from Seller;
WHEREAS, Tosco desires to facilitate the furnishing of Electricity to
Buyer;
and
WHEREAS, the Parties herewith are entering into an agreement for
Seller's furnishing of Electricity to Buyer.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and other valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Parties, intending to be legally bound, agree as
follows:
ARTICLE I
DEFINITIONS AND INTERPRETATION
1.1 Definitions. As used in this Agreement, the following terms when
initially capitalized in this Agreement shall have the following meanings:
"Affiliate" means, with respect to any Person, any other Person that
directly or indirectly, through one or more intermediaries, controls, is
controlled by or is under common control with, such Person. Solely for the
purposes of defining the term Affiliate, "Control," when used with respect to
any Person, means the possession of the power to direct or cause the direction
of management and policies of such Person, directly or indirectly, whether
through the ownership of voting securities, by contract or otherwise, and the
terms "Controlling" and "Controlled" have meanings correlative to the foregoing.
The ownership, directly or indirectly, of 10% or more of the voting securities
of any Person shall constitute "Control" of such Person. El Paso Energy
Corporation and its affiliates shall be deemed to be Affiliates of Seller.
"Agreement" means this
Electricity Supply Agreement, including all
exhibits hereto, as amended from time to time,
"Annual Period" means any one of a succession of consecutive twelve
(12) Month periods, the first of which shall begin on the Commercial Operations
Date of the Linden 6 Facility.
"Base Term" of this Agreement has the meaning assigned to it in Section
2.1.
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"Bayway Property" means the land upon which the Bayway Refinery is
located at Linden, N.J. and Elizabeth, N.J. and such other properties that could
be served by the Linden 6 Facility without adversely affecting the Linden 6
Facility's qualification as an On-site Generation Facility.
"Bayway Refinery" means (i) the oil refinery, marketing terminal,
petrochemical plant and associated facilities owned or operated by Bayway or an
Affiliate of Bayway; (ii) the operations of Buyer; (iii) the operations of Exxon
Company, U.S.A. Site Remediation; and (iv) any other facilities or operations
all located on the Bayway Property that are related to and integrated with the
industrial processes or marketing terminal operations of the Baway Refinery
(whether or not owned or operated by Bayway or an Affiliate or a Third Party).
"Btu" means one British Thermal Unit.
"Business Day" means a day other than a Saturday, Sunday or other day
on which commercial banks in New York City or Linden,
New Jersey, are authorized
or required by law to close.
"Buyer" means Infineum USA L.P., a Delaware limited partnership, and
its permitted successors and assigns.
"Buyer's Complex" means Buyer's chemical plant (formerly Exxon Chemical
Company's Chemical Plant) located at Linden,
New Jersey, and does not include
the technology center owned by Buyer in Linden,
New Jersey.
"Buyer's Load" means Buyer's aggregate consumption of Electricity (in
kWh) at Buyer's Complex.
"Buyer's Property" means the real property interests, if any, and of
whatever nature in and to the land upon which Buyer's Complex is located.
"Buyer's Requirements" means Buyer's Electricity requirements for
Buyer's Complex.
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"Change in Law" means a change which occurs after the Effective Date in
any statute, ordinance, regulation or policy of any Governmental Authority or
the policies, rules or procedures of PJM or any other legal requirements
applicable to the construction, operation or maintenance of the Linden 6
Facility.
"Claiming Party" means a Party claiming Force Majeure.
"Claims" has the meaning assigned to it in Section 11.1.
"Commercial Operations Date" means the date declared by Seller in a
notice to Buyer and Tosco on or after the date on which Electricity is first
available to be delivered hereunder from the Linden 6 Facility to the Delivery
Point by Seller following successful completion of Operational Testing of the
Linden 6 Facility, consistent with Prudent Electric Industry Practice.
"Cost of Fuel" means, for any Month, the average price for natural gas
(including the value of Refinery Gas) delivered to the Linden 6 Facility during
such Month, including the cost of transportation and related services necessary
for the purchase and delivery of such fuel, inclusive of all Taxes, expressed in
$/MMBtu.
"Default" has the meaning assigned to it in Article 9.
"Delivery Point" means the point as described in Exhibit D.
"Effective Date" has the meaning assigned to it in Section 2.1.
"Electricity" means electrical energy, expressed in kilowatt-hours
(kWh), for Buyer's Complex.
"Existing Plant" means the cogeneration facility and all appurtenant
structures and equipment owned by Seller in Linden,
New Jersey, as of the date
hereof and as generally described in the filing made with the FERC in Docket No.
QF90-65-000 for the purpose of producing steam and generating electricity and
does not include any portion of the Linden 6 Facility.
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"FERC" means the Federal Energy Regulatory Commission.
"FERC Rules" means the regulations promulgated by the FERC under PURPA
that are set forth in 18 C.F.R. Part 292, or successor regulations and any other
applicable regulations promulgated by the FERC.
"Force Majeure" has the meaning assigned to it in Section 10.2.
"Governmental Authority" means any governmental, legislative, judicial
or administrative body or court or any other Person authorized to make or
enforce laws or regulations or exercising executive, legislative, judicial,
regulatory or administrative functions or pertaining to government.
"HTS Price" means the price for Electricity furnished by PSE&G pursuant
to its published HTS Rate Schedule, as may be amended from time to time,
calculated in the manner set forth in Exhibit B.
"Independent Party" means an independent party unrelated, directly or
indirectly, to either Party and mutually agreeable to the Parties.
"Infineum Steam Agreement" has the meaning assigned to it in the
recitals hereof.
"Interest Rate" means two (2) percent 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
payment becomes due; provided, however, in no event shall the Interest Rate
exceed the maximum rate of interest permissible under the laws of the State of
New Jersey.
"Linden 6 Facility" has the meaning assigned to it in the second
recital.
"Metering Points" means those points where Buyer receives Electricity
from the electrical distribution facilities of the Bayway Refinery.
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"Month" means a calendar month, except for the calendar month that
includes the Commercial Operations Date, in which case the term means the period
commencing on such date and ending on the last day of such calendar month.
"MMBtu" means one million Btus.
"MW" means millions of ▇▇▇▇▇.
"New Taxes" means any Taxes imposed on or required to be collected by
Seller on or after the Effective Date for the delivery, purchase or sale of
Electricity pursuant to this Agreement that are not or would not be reflected in
the calculation of the price for Electricity pursuant to Section 5.1 because
such Taxes are not imposed on or required to be collected by PSE&G pursuant to
its HTS Rate Schedule, as may be amended from time to time.
"On-site Generation Facility" has the meaning provided in
New Jersey
P.L. 1999 (The Electric Discount and Energy Competition Act), Chapter 23, Sec.
3, and as may be amended from time to time.
"Party" means Buyer or Seller or Tosco, as the case may be, and its
permitted successors and assigns.
"Person" means a natural person, corporation, limited liability
company, partnership, association, joint venture, real estate investment trust
or business trust (including any beneficiary thereof), unincorporated
association, and any other form of business, legal or governmental entity.
"PJM" means the PJM Interconnection, L.L.C. or any successor
independent system operator or regional transmission organization performing
substantially similar functions.
"Prudent Electric Industry Practice" means any of the practices,
methods or acts (i) required by the National Electric Safety Code, PJM, the
North American Electric Reliability Council, or the successors of any of them,
whether or not Seller is a member thereof, or (ii) otherwise engaged in or
approved by a significant portion of the electric generation industry during the
relevant time period or any of the practices, methods and acts that in the
exercise of reasonable judgment in light of the facts known at the time the
decision was made, could have
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been expected to accomplish the desired result at a reasonable cost consistent
with good business practices, reliability, safety and expedition. Prudent
Electric Industry Practice is not intended to be limited to the optimum
practice, method or act to the exclusion of all others, but rather to be
acceptable practices, methods or acts generally accepted in the region.
"PSE&G" means the Public Service Electric and Gas Company, its
successors and assigns.
"PURPA" means the Public Utility Regulatory Policies Act of 1978, as
amended.
"Refinery Gas" means any natural gas that Tosco may, in its sole
discretion and limited solely by its rights pursuant to the ESA to make such
arrangements, arrange for delivery to the Linden 6 Facility in exchange for
refinery gas produced by the Bayway Refinery. Such natural gas shall be valued
for purposes of this Agreement at the arithmetic average of the common range
prices (in $/MMBtu) published by Financial Times Energy in Gas Daily for
delivery of natural gas to citygates identified as (a) "Tetco M-3" and (b)
"Transco Zone 6 NY" for deliveries of natural gas made on such Day (identified
in Gas Daily as the "flow date") or, if no price is published for deliveries of
natural gas made on such Day, the most recent prices published for deliveries
made on a Day prior to such Day (the "Gas Daily Price"). If the publication of
prices in Gas Daily for "Tetco M-3" or "Transco Zone 6 NY" is discontinued or
reconstituted in such a manner so as to render them unusable for the purposes
intended by the Parties, Seller and Tosco shall agree on a substitute
publication of natural gas prices commonly accepted in the natural gas industry
that most closely reflects the prices for natural gas delivered in like quantity
and quality to the facilities of PSE&G in or near Linden,
New Jersey.
"Qualifying Facility" means a facility that meets the requirements set
forth in the FERC Rules implementing PURPA for a qualifying cogeneration
facility.
"Seller" means JEDI Linden NB, L.L.C., a Delaware limited liability
company, and its permitted successors and assigns.
"Taxes" shall mean any or all ad valorem, property (including host
community benefit fees and payments in lieu of taxes), occupation, severance,
generation, first use, conservation, Btu or energy, transmission, utility, gross
receipts, privilege, sales, use,
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consumption, excise, lease, transaction, and other taxes or, governmental
charges, licenses, fees, permits and assessments, or increases therein, other
than taxes based on Seller's or its Affiliates' net income or net worth.
"Third Party" means a Person other than a Party.
"Tosco" means Tosco Corporation, a corporation organized pursuant to
the laws of the State of Nevada, and its permitted successors and assigns.
1.2 Interpretation.
A. Each Party acknowledges that each of the other Parties and their
respective counsel have reviewed and revised this Agreement and that the normal
rule of construction to the effect that any ambiguities are to be resolved
against the drafting party shall not be employed in the interpretation of this
Agreement.
B. Defined terms in this Agreement shall include in the singular number
the plural, and in the plural number the singular. Whenever the context
requires, any pronoun shall include the corresponding masculine, feminine and
neuter forms. Article, section and exhibit references are to articles, sections
of and exhibits to this Agreement, except as otherwise indicated.
C. Unless otherwise stated, any reference in this Agreement to any
Governmental Authorities or to any statutes and regulations shall include
references to any successors to such Governmental Authority and to any successor
provisions to such statutes and regulations, respectively.
D. When used in this Agreement, the words "Btu" and "MMBtu" when used
to describe the energy equivalent of a quantity of fuel shall, unless otherwise
expressly indicated, refer to the higher heating value ("HHV") of such fuel;
the words "hereof," "herein," "hereunder" and words of similar import shall,
unless otherwise expressly indicated, refer to this Agreement as a whole and not
to any particular provision of this Agreement; the words "include," includes,"
and "including" shall be understood to mean inclusion without limitation.
8
ARTICLE 2
TERM
2.1 Base Term of Agreement. This Agreement shall be effective as of the
later of the date of execution or the satisfaction of the Condition Precedent as
set forth in Section 2.3 (the "Effective Date") and shall continue until the
date which is the fifth (5th) annual anniversary of the Commercial Operations
Date of the Linden 6 Facility (the "Base Term"), unless earlier terminated or
extended in accordance with the terms of this Agreement.
2.2 Renewal of Agreement. The Parties agree to negotiate in good faith an
agreement for the continued supply of Electricity to Buyer's Complex that would
be effective upon expiration of the Base Term.
2.3 Condition Precedent. This Agreement shall not be effective until Tosco
and Seller shall execute certain amendments to the ESA related to the furnishing
of Electricity to Infineum prior to the Commercial Operations Date, acceptable
to Seller, necessary to facilitate Seller's performance of this Agreement.
Seller shall notify Buyer when Seller and Tosco have executed such amendments.
ARTICLE 3
REPRESENTATIONS, WARRANTIES AND ACKNOWLEDGEMENTS
3.1 Representations and Warranties of Buyer. As of the execution of this
Agreement and the Effective Date, Buyer represents and warrants to Seller that:
A. It is a limited partnership duly organized and existing in good
standing under the laws of the State of Delaware, and is 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.
C. Neither the execution nor delivery by it of this Agreement
conflicts with, results in a breach of or constitutes a default under (i) any of
the terms, conditions or provisions of its certificate or articles of
incorporation, articles of association, limited liability company or
9
partnership agreement, by-laws or other constituent documents, (ii) any
material, federal, state or local law, or any order, rule or regulation of any
Governmental Authority having jurisdiction over it or its properties or by which
it or its properties may be bound, or (iii) any agreement or instrument to which
it is a Party or by which it or any of its properties may be bound, other than
with respect to any agreements or instruments for which consents or approvals
are required from any partner or member of Buyer.
D. Buyer intends to conduct its operations and activities in such a
manner that no such operations or activities adversely affect the qualification
of the Linden 6 Facility as an On-site Generation Facility.
E. No suit, action or arbitration, or legal, administrative or other
proceeding is pending or threatened 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.
3.2 Representations and Warranties of Seller. As of the Effective Date,
Seller represents and warrants to Buyer that:
A. Seller is a limited liability company 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.
C. Neither the execution nor delivery by it of this Agreement
conflicts with, results in a breach of or constitutes a default under (i) any of
the terms, conditions or provisions of its certificate or articles of
incorporation, articles of association, limited liability company or partnership
agreement, by-laws or other constituent documents, (ii) any material, federal,
state or local law, or any order, rule or regulation of any Governmental
Authority having jurisdiction over it or its properties or by which it or its
properties may be bound, or (iii) any agreement or instrument to which it is a
Party or by which it or any of its properties may be bound, other than with
respect to any agreements or instruments for which consents or approvals are
required from any partner or member of Seller.
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D. No suit, action or arbitration, or legal, administrative or other
proceeding is pending or threatened 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.
3.3 Buyer's Acknowledgement. Buyer hereby acknowledges that this Agreement
is the product of arm's-length negotiation and that there is no conflict between
any arrangement under this Agreement and any contract or agreement between Buyer
and Tosco for the supply or furnishing of Electricity within the Bayway
Property. Buyer acknowledges that Buyer's Complex is not directly connected to
Seller's Delivery Point, that Electricity furnished to Buyer will be delivered
at the Delivery Point into electric distribution facilities owned by Tosco and
that Buyer is responsible for arranging the delivery of Electricity from the
Delivery Point to Metering Points at points of interconnection between the
electrical distribution facilities of the Bayway Refinery and Buyer's Complex
and for any and all costs incurred as a result thereof.
ARTICLE 4
DELIVERY OF ELECTRICITY
4.1 Electricity Quality. Commencing on the Commercial Operations Date,
Seller shall deliver Electricity to Buyer at 230kV (nominal) and 60 Hertz
(nominal) at the Delivery Point. Buyer shall make all arrangements necessary for
the delivery of Electricity from the Delivery Point to the Metering Points.
4.2 Electricity Quantity. From and after the Commercial Operations Date (i)
Seller shall provide all of Buyer's Requirements for Electricity for Buyer's
Complex up to but not exceeding a maximum coincident demand of ten (10) MW and
(ii) Buyer shall take all of Buyer's Requirements for Electricity, which are
presently estimated, but not guaranteed, to be approximately five and one-half
(5.5) MW. Seller recognizes that Buyer may reduce, terminate, or change the
nature of its operations at Buyer's Complex and that Buyer's Requirements may be
reduced or eliminated as a result. Buyer shall notify Seller and Tosco as soon
as practicable following Buyer's reasonable anticipation of any material change
or elimination of Buyer's Requirements. If Buyer elects to dispose of or cease
all or substantially all of its industrial operations in Buyer's Complex or
otherwise reduce or eliminate seventy-five percent (75%) of
11
Buyer's Requirements for a period of one hundred eighty (180) days or more as
compared to Buyer's Requirements for the immediately preceding one hundred
eighty (180) day period, other than because of Force Majeure, Seller may elect
to terminate this Agreement upon fifteen (15) days prior notice to Buyer and
Tosco.
4.3 Title: Risk of Loss. Seller shall be deemed to be in exclusive control
(and responsible for any damages or injury caused thereby) of the Electricity on
Seller's side of the Delivery Point and Buyer shall be deemed to be in exclusive
control (and responsible for any damages or injury caused thereby) of the
Electricity at and from the Delivery Point. Title to and the risk of loss
related to the Electricity shall transfer from Seller to Buyer at the Delivery
Point. The Parties acknowledge that Tosco will not possess title to any of the
Electricity delivered to Buyer under this Agreement at any time.
4.4 Back-up Electricity Arrangements. In the event that the Linden 6
Facility is not available to produce Electricity for delivery to Buyer, Seller
shall be responsible for arranging the supply of back-up Electricity required by
Buyer at Buyer's Complex at no additional cost to Buyer.
4.5 Closure or Disposition of Buyer's Facilities. In the event that Buyer
closes or otherwise shuts down Buyer's Complex for any reason, or disposes of
Buyer's Complex by any means, including hut not limited to Force Majeure, Buyer
shall provide Seller with notice of such closure, shutdown or disposition not
more than three (3) days after Buyer obtains knowledge that Buyer's Complex will
be closed, shut down or disposed.
4.6 Sales of Electricity to Third Parties.
A. Purchases and Sales of Electricity; Affiliate Transactions. Seller
may sell Electricity to Third Parties or to any Affiliate of Seller.
B. No Resales by Buyer. Buyer shall not be entitled to resell or check
meter Electricity delivered by Seller hereunder to any Third Party.
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4.7 On-site Generation Facility Status. Buyer and Seller shall conduct
their operations and activities in a manner that such operations and activities
do not prevent or otherwise adversely affect the qualification of the Linden 6
Facility as an On-site Generation Facility. Upon notice to Buyer and Tosco,
Seller may suspend delivery of Electricity to Buyer if, at any time, Buyer's use
or redistribution of Electricity furnished pursuant to this Agreement is not in
compliance with the requirements for an On-site Generation Facility.
4.8 Purchases of Electricity from Third Parties. Buyer acknowledges that
Seller may satisfy its obligation to deliver Electricity to Buyer pursuant to
this Agreement from resources other than the Linden 6 Facility.
ARTICLE 5
PRICE FOR ELECTRICITY
5.1 Price. The price which Buyer agrees to pay to Seller, and Seller agrees
to accept from Buyer, on and after the Commercial Operations Date for Buyer's
Requirements is set forth in Exhibit A, which is inclusive of all Taxes on the
delivery, purchase and sale of Electricity hereunder as of the date of execution
hereof.
ARTICLE 6
METERING
6.1 Reporting Buyer's Use of Electricity. Not later than 5:00 p.m. on the
first Business Day following the conclusion of any Month during the Term, Tosco
shall in good faith provide Seller and Buyer with Buyer's Load during the
immediately preceding Month, including reasonable supporting data and other
relevant information. Buyer shall use commercially reasonable efforts to insure
an accurate determination of Buyer's Load. Tosco's existing meters at existing
Metering Points, or such additional meters as may be necessary to measure
Buyer's consumption of Electricity at additional Metering Points within the
Bayway Property, shall be used for all quantity measurements regarding Buyer's
Load. For purposes of this Agreement, Electricity shall be measured in
kilowatt-hours (kWh), without respect to demand or time of use.
6.2 Means of Measurement and Notice to Seller. Buyer shall be required to
arrange with Tosco to measure the quantity of Electricity received by Buyer.
Buyer shall arrange with
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Tosco to design, install, operate, maintain and own all measuring equipment
necessary for the accurate measurement and determination of Buyer's Load. Such
measurement shall be determined by one or a combination of the following
methods:
A. Using the registration of any meter or meters of Tosco, if
accurately registering; or
B. In the absence of an accurately registering meter of Tosco, making
a calibration test or mathematical calculation, if the percentage of error is
ascertainable; or
C. In the absence of both an accurately registering meter of Tosco and
an ascertainable percentage of error, estimating by reference to quantities
measured during period of similar conditions when Buyer's meter was registering
accurately. Buyer shall arrange with Tosco to repair or recalibrate any
inaccurate meter in a timely manner; 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 Buyer's
Complex for the period in question.
6.3 Testing. All meters used for measuring the quantity of Electricity
received by Buyer shall be maintained under the following procedures:
A. Testing of Meters. Buyer shall arrange with Tosco to test and
verify the accuracy of Tosco's measuring equipment annually in Seller's
presence. The calibration procedure to be used under this Section 6.3A shall be
mutually agreed to by the Parties prior to the ▇▇▇▇ ▇▇▇▇▇▇ first delivers
Electricity to Buyer. Seller shall have the right to witness and audit any
measuring of, or testing performed on, the meters used to determine Buyer's
Load. Seller shall give timely notice to Buyer and Tosco in advance of taking
any of such actions.
B. Other Testing of Meters. In the event that a Party notifies the
other Parties that it desires a test of its own or of another Party's
measuring equipment, the Parties shall cooperate to secure a prompt verification
of the accuracy of such equipment.
C. Costs of Testing. Buyer and Seller shall bear the cost of the
testing and any required adjustments of their respective measuring equipment. In
the event that a Party
14
requests more frequent testing of another Party's measuring equipment, the
requesting Party shall bear the cost of the testing unless such equipment is
found to be inaccurate by one percent (1%) or greater. For purposes of this
Section 6.3C, the obligations of Buyer shall apply to Tosco's meters used to
measure Buyer's Load.
D. Corrections of Measuring Equipment. If, upon testing, any measuring
equipment is found to be inaccurate by less than one percent (1%) at a rate
corresponding to the average hourly rate for Electricity supplied by Seller to
Buyer's Complex for the period since the last preceding test, previous
recordings of such equipment shall be considered accurate in computing
deliveries of Electricity hereunder, but such equipment shall be promptly
adjusted to record correctly to the extent possible. If, upon testing, any
measuring equipment shall be found to be inaccurate by greater than one percent
(1%) at a rate corresponding to the average hourly rate for Electricity supplied
by Seller to Buyer's Complex 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 Seller shall promptly send to Buyer,
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.
6.4 Maintenance and Records.
A. Maintenance. Seller shall have the right to have a representative
present whenever Buyer, Tosco or an Independent Party, as applicable, cleans,
changes, repairs, inspects, tests, calibrates or adjusts any metering equipment
or any equipment used in checking measurements. Seller shall give not less than
five (5) days notice to Buyer or Tosco or the Independent Party, in advance of
taking any such action, unless providing such notice is not feasible as a result
of the need for immediate repairs in which case prompt notice shall be given.
B. Records. The records from the test of any measurement equipment
owned by Tosco shall remain the property of Tosco, but upon Seller's request to
Buyer and Tosco, Buyer shall arrange to have Tosco submit to Seller Tosco's
records and charts (or, at Tosco's
15
option, copies thereof), together with calculations therefrom, for inspection
and copying, subject to return by Seller within ten (10) days of receipt
thereof.
ARTICLE 7
INVOICES AND PAYMENT
7.1 Billing. Within ten (10) days of receipt of Buyer's Load for the prior
Month, Seller shall prepare and deliver to Buyer, and contemporaneously deliver
a copy to Tosco, an invoice for Buyer's Load in the preceding Month at the price
set forth in Article 5 of this Agreement.
7.2 Payment. On or before ten (10) days after receipt of Seller's invoice,
or if such day is not a Business Day, the immediately following Business Day,
Buyer shall render by wire transfer the amount set forth on such invoice to the
address provided in Section 14.1, and shall promptly notify Tosco by facsimile
or in such other manner acceptable to Tosco that such payment has been made.
Overdue payments shall accrue interest from and including the due date to, but
excluding, the date of payment at the Interest Rate.
7.3 Infineum Steam Agreement. Buyer shall not offset any amounts due to
Seller for Electricity under this Agreement by any credits derived pursuant to
the Infineum Steam Agreement.
7.4 Disputes. If Buyer in good faith disputes an invoice, Buyer shall
provide a written explanation of Buyer's good faith basis for the dispute to
both Seller and Tosco not later than thirty (30) days of the due date for
amounts billed, and Buyer shall pay the entire invoice no later than the due
date. Notwithstanding the foregoing, however, Buyer shall retain the right to
dispute invoices after payment thereof for a period of three (3) years after the
date on which the invoice was paid. If any amount disputed by Buyer is
determined to be due to Buyer, Seller shall pay Buyer within ten (10) days of
such determination, in addition to interest accrued at the Interest Rate from
the date initial payment of the disputed amount was received by Seller until the
date paid to Buyer.
7.5 Adjustments. Seller shall promptly prepare and deliver to Buyer, and
contemporaneously to Tosco, an invoice setting forth any adjustments for
discrepancies in billing
16
identified through meter verifications pursuant to Article 6 or for any reason
that would require immediate reimbursement of billed amounts to Buyer or
additional payments by Buyer to Seller hereunder, along with interest accrued at
the Interest Rate from the date such payments or reimbursement should have been
paid in ordinary course to Buyer or Seller, as the case may be.
7.6 Audit Rights. For a period of three (3) years after the rendering of
any invoice furnished to Buyer pursuant to this Article 7, Buyer and Tosco may
request of Seller and obtain reasonable access to the books, records, files and
other data of the Linden 6 Facility in the possession of Seller to the extent
such are necessary to determine, verify, analyze or confirm the reasonableness
and necessity of the amounts charged and credited pursuant to this Agreement.
7.7 Books and Records. Buyer and Seller shall each maintain complete and
accurate records concerning the amounts charged and credited pursuant to this
Agreement for a period of three (3) years from the date of invoices therefrom
and shall make such records available to the other Parties in accordance with
the provisions of Section 7.6.
ARTICLE 8
TAXES
8.1 Taxes. In the event that Seller seeks to invoice Buyer for New Taxes
pursuant to this Agreement, Seller shall provide written notice to Buyer as soon
as reasonably practicable and shall propose a meeting to negotiate in good faith
a revised price for Electricity. Buyer shall be responsible only for New Taxes
that have been incorporated into a revised price for Electricity. If the Parties
are unable to agree upon a revised price for Electricity, this Agreement shall
terminate thirty (30) days after Buyer's receipt of such notice from Seller.
Each Party shall use reasonable efforts to administer this Agreement and
implement the provisions in accordance with the intent to minimize Taxes, and
shall use reasonable efforts to obtain and cooperate with the other Parties in
obtaining any exemption from or reduction of any Tax.
ARTICLE 9
DEFAULT AND REMEDIES
9.1 Seller Default. The occurrence of any of the following events shall
constitute a "Default" by Seller (with the understanding by the Parties that a
Default by Seller under this
17
Agreement shall not constitute a default under the Infineum Steam Agreement
unless the facts constituting a Default hereunder separately constitute a
default thereunder):
A. Seller fails to pay any amounts due to Buyer hereunder and such
breach continues for a period of fifteen (15) days after notice thereof shall
have been received by Seller from Buyer.
B. Seller fails to materially perform any obligations to Buyer, or
breaches a material term or condition of this Agreement, including a breach of
its representations and warranties or covenants hereunder, and such breach
continues for a period of sixty (60) days after notice thereof has been received
by Seller from Buyer; provided, that if such breach is not reasonably capable of
being cured within such sixty (60) day period and Seller reasonably commences to
cure such breach within such sixty (60) day period, such sixty (60) day period
shall be extended for such additional period, but in no event longer than
eighteen (18) Months, as is reasonably necessary to remedy such failure if and
for so long as Seller is diligently continuing efforts to pursue a cure for such
breach.
C. Any sale, assignment or other transfer in violation of Article 13.
9.2 Buyer Default. The occurrence of any of the following events shall
constitute a "Default" by Buyer (with the understanding by the Parties that a
Default by Buyer under this Agreement shall not constitute a default under the
Infineum Steam Agreement unless the facts constituting a Default hereunder
separately constitute a default thereunder):
A. Buyer fails to pay any amounts due Seller hereunder and such breach
continues for a period of fifteen (15) days after notice thereof has been
received by Buyer from Seller.
B. Buyer fails to materially perform any obligation to Seller, or
breaches a material term or condition of this Agreement, including a breach of
its representations and warranties or covenants hereunder other than Sections
9.2A, 9.2C and 9.2D, and such breach continues for a period of sixty (60) days
after notice thereof has been received by Buyer from Seller; provided, that if
such breach is not reasonably capable of being cured within such sixty (60) day
period and provided that Buyer reasonably commences to cure such breach within
such
18
sixty (60) day period, such sixty (60) day period shall be extended for such
additional period, but in no event longer than eighteen (18) Months, as is
reasonably necessary to remedy such failure if and for so long as Buyer is
diligently continuing efforts to pursue a cure for such breach.
B. Buyer fails to conduct its operations or activities in a manner so
as to prevent an adverse effect on the qualification of the Linden 6 Facility as
an On-site Generation Facility.
C. Any sale, assignment or other transfer in violation of Article 13.
9.3 Tosco's Right to Cure. The Parties agree and acknowledge that upon a
breach by Buyer or Seller, Tosco shall have the same right, but not any
obligation, to prevent a Buyer Default or Seller Default by acting on behalf of
Buyer or Seller within the time required to cure such breach by Buyer or Seller.
9.4 Remedies. If a Default has occurred and is continuing, the Party that
is not in Default may, at its sole option, elect to terminate this Agreement
and, subject to Article 12, take any action at law or in equity that may be
available to it to enforce the payment of any damages or the performance of all
obligations of the Party in Default hereunder. Notwithstanding the foregoing
neither Party shall have a right to terminate this Agreement unless such Party
shall have provided the other Parties notice of a breach pursuant to Section
9.1. The breaching Party shall have no less than the specified amount of time to
cure such breach, which time shall expire on the later of the dates available to
the breaching Party.
9.5 Damages. Upon the occurrence of a Default hereunder, the aggrieved
Party may elect to terminate this Agreement by providing notice thereof to the
defaulting Party and shall be entitled to seek damages as available at law
except as may be limited pursuant to Section 9.5.
9.6 Limitation on Liability for Damages. The Parties agree that for breach
of any provision under this Agreement, the obligor's liability shall be limited
to direct actual damages only, such direct actual damages shall be the sole and
exclusive remedy and all other remedies or damages at law or in equity are
waived, except that any Party may seek specific performance of any provision of
this Agreement, including such temporary injunctive relief as may be available
at law or in equity. If, for any reason, Seller fails to furnish all or a
portion of Buyer's
19
Requirements at the Delivery Point and such failure is not excused pursuant to
this Agreement, Buyer's damages shall be limited to the reasonable cost of
replacement power delivered at 230 kV (nominal) to the electrical distribution
facilities of the Bayway Refinery. No Party shall be liable for consequential,
incidental, punitive, exemplary or indirect damages, lost profits or other
business interruption damages, by statute, in tort or contract, under any
indemnity provision or otherwise. It is the intent of the Parties that the
limitations herein imposed on remedies and the measure of damages be without
regard to the cause or causes related thereto, including the negligence of any
Party, whether such negligence be sole, joint or concurrent, or active or
passive.
9.7 Duty to Mitigate. Each Party shall use commercially reasonable efforts
to mitigate the incurrence of damages.
ARTICLE 10
FORCE MAJEURE
10.1 Force Majeure. If a Claiming Party is rendered wholly or partly unable
to perform its obligations under this Agreement because of a Force Majeure
event, that Party shall be excused from whatever performance is affected by such
Force Majeure event but only to the extent so affected; provided, that: (i) the
Claiming Party, within two (2) days after the occurrence of the Force Majeure
event, gives the other Party notice describing the particulars of the occurrence
and its estimated duration; (ii) the suspension of performance is of no greater
scope and of no longer duration than is required by the Force Majeure event; and
(iii) the Claiming Party uses commercially reasonable efforts to remedy its
inability to perform, to secure substitute suppliers or services and to resume
its full performance under this Agreement; provided, however, that the Claiming
Party's obligation to remedy its inability to perform shall not require the
settlement of any strike, walkout, lockout or other labor dispute on terms that,
in the sole judgment of the Party involved in said dispute, are contrary to its
best interest. Notwithstanding anything to the contrary contained in this
Agreement, in no event shall Buyer be excused by reason of Force Majeure from
its obligation to pay any amounts due under this Agreement.
10.2 Force Majeure Defined. "Force Majeure" means any event beyond the
reasonable control of the Party affected thereby that adversely affects the
ability of such Party to perform
20
any obligation hereunder (other than failure to pay money when due), including
but not limited to the following: acts of God, war or foreign enemy; unusually
severe weather conditions; flood; earthquake; storm; hurricane; epidemics;
lightning; fire; drought; explosion; riot; civil disturbance; strikes, lockouts
or similar labor interruptions or labor disputes; sabotage; an event of force
majeure occurring with respect to, or a suspension, curtailment or service
interruption of, any third party supplier of Electricity, gas, water or waste
water, or any Third Party Electricity, gas, water or waste water transmission or
distribution provider (including any independent system operator or equivalent,
and any interstate natural gas pipeline or any local Electricity, gas or water
distribution company or provider of waste water); arrests and restraints of
rules and people; any action of a court or a binding order of any Governmental
Authority; inability after diligent application to obtain or maintain required
permits, zoning or other required approvals from any Governmental Authority or
other Third Party whose consent is required as a condition to a Party's
performance hereunder; failure of Third Party facilities or Third Party major
equipment breakdown; failure of any contractor, subcontractor or supplier to
furnish labor, services, materials or equipment on the dates agreed to if such
failure is caused by a Force Majeure; a change in applicable law; the failure of
any public agency or Governmental Authority or any utility having jurisdiction
of the Existing Plant to maintain utilities, services, water and sewer lines and
power transmission lines; and any circumstance that would in the reasonable
opinion of such Party endanger persons or property. A failure of equipment or
machinery controlled or operated by a Party (whether leased or owned) shall not
be considered Force Majeure irrespective of whether such equipment or machinery
has been designed, manufactured, installed, or maintained by the Party or a
Third Party unless such failure was due to a Force Majeure.
ARTICLE II
INDEMNIFICATiON
11.1 Indemnification for Claims. Each Party shall defend, indemnify and
hold harmless the other Parties and their officers, directors, employees,
contractors, subcontractors, Affiliates and agents ("Related Parties") from and
against any and all Third Party liabilities, claims, injuries (including death
resulting therefrom), property damage, fines, penalties or assessments by any
public agency, insofar as not prohibited by law, costs or expenses (including
21
costs of defense, settlement and reasonable attorneys' fees) (collectively,
"Claims") to the extent caused by the negligence or willful misconduct of the
indemnifying Party or its Related Parties in connection with performance under
this Agreement. The term "liabilities" in the preceding sentence, and the
indemnification obligation, include any strict liability and other liability
without fault, however named, asserted against the Parties indemnified.
11.2 Notice. Each Party hereto shall promptly furnish the other Parties
with notification (but in no event later than ten (10) days prior to the time
any response is required by law) after such Party becomes aware of any event or
circumstance which might give rise to such indemnification.
11.3 Defense. The indemnifying Party shall have the right to defend any
suit asserting a Claim covered by this indemnity and shall pay all costs and
expenses (including reasonable attorneys' fees and expenses) that may be
incurred in enforcing this indemnity. The indemnified Party may, at its own
expense, retain separate counsel and participate in the defense of any such suit
or action. The indemnifying Party shall not compromise or settle a Claim
hereunder without the prior written consent of the indemnified Party; provided,
however, that in the event such consent shall be withheld, then the liability of
the indemnifying Party shall be limited to the aggregate of the amount of the
proposed compromise or settlement, the amount of counsel fees and expenses
outstanding at the time such consent shall have been withheld, and the amount of
any outstanding claim against which indemnification applies and which is not
covered by the proposed compromise or settlement (together with all costs and
expenses associated with such outstanding Claim). Thereafter, the Party
withholding such consent shall hold harmless and reimburse the indemnifying
Party, upon demand, for the amount of any additional liability, counsel fees and
expenses incurred by the indemnifying Party over and above the amounts described
above after the time such consent shall have been withheld. To the extent a
Party disputes its obligation to indemnify another Party or Parties, it shall
not be considered a breach of this Agreement for such Party to fail to perform
under this Section 11.3 until such time as such Party is determined to have the
obligation to indemnify under Section 11.1.
11.4 Survival of Indemnifications. The provisions of this Article shall
survive the expiration or earlier termination of this Agreement.
22
ARTICLE 12
DISPUTE RESOLUTION
12.1 Dispute Resolution.
A. The Parties agree to work in good faith to resolve any claim,
demand, cause of action, dispute or controversy arising out of or relating to
this Agreement. The Parties shall refer any such dispute to representatives of
each Party's senior management for resolution.
B. If the representatives of each Party's senior management are unable
to resolve such dispute within ten (10) Business Days after such referral, the
Parties shall have the right to exercise any and all remedies available to them
at law or in equity.
ARTICLE 13
ASSIGNMENT
13.1 General. Except as provided in this Article 13, no Party may assign or
otherwise transfer this Agreement or any of its rights hereunder to any other
Person without the express written consent of the other Parties, which consent
shall not be unreasonably withheld, delayed or conditioned.
13.2 Permitted Assignments. Any Party may assign this Agreement to an
Affiliate.
13.3 Further Assurances. If reasonably requested by a Party proposing to
effect an assignment pursuant to this Article 13, the other Parties shall
reasonably cooperate to facilitate such proposed assignment, including without
limitation by agreeing to furnish an estoppel certificate if and to the extent
appropriate with respect to the assigning Party's compliance under this
Agreement.
13.4 Violations a Default; Further Remedies. Any sale, assignment or other
transfer by Seller or Buyer in violation of this Article 13 shall constitute a
Default hereunder at the option of the other Party (an "Article 13 Default"). In
addition, in the event of an Article 13 Default, Seller shall be entitled to the
following relief, in addition to any other remedies available at law or in
equity: until Buyer's non-compliance is cured, Seller shall have no obligation
to deliver
23
Electricity to Buyer or Buyer's proposed assignee and to purchase or pay for any
back-up Electricity for Buyer or Buyer's proposed assignee hereunder.
ARTICLE 14
NOTICES
14.1 General. All notices, notifications, invoices, payments, consents or
other communications between the Parties shall be given in writing and shall
either be delivered by hand or sent by certified or registered mail, return
receipt requested, or by facsimile followed immediately by certified or
registered mail, return receipt requested, as follows:
If to Buyer:
Infineum USA L.P.
Bayway Chemical Plant
Park and Brunswick Avenues
P.O. Box 23
Linden,
New Jersey 07036
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Infineum USA L.P.
Bayway Chemical Plant
Park and Brunswick Avenues
P.O. Box 23
Linden, New Jersey 07036
Attn: ▇▇▇ ▇▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With the exception of invoices, which shall be sent to the
following address:
Infineum USA L.P.
Bayway Chemical Plant
Park and Brunswick Avenues
▇.▇. ▇▇▇ ▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇: ▇▇▇▇ ▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to Seller:
JEDI Linden NB, L.L.C.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
24
with a copy to:
East Coast Power L.L.C.
▇▇▇▇ ▇▇▇▇▇▇▇▇ - ▇. ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Linden 6 Facility Manager
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
25
If to Tosco:
Tosco Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
Bayway Refining Company
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Refinery Manager
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Notices shall be deemed received when delivered by hand, upon receipt (as
indicated on a return certificate), or when sent by facsimile.
14.2 Notice to Tosco. A copy of any material notice, notification,
invoice, payment, consent or other communication required to be provided
hereunder from Seller to Buyer, or from Buyer to Seller, shall also be
contemporaneously provided to Tosco in accordance with the procedures set forth
in this Article 14.
14.3 Changes. A Party may change its address for notice hereunder, or
provide for additional Persons to be noticed, by giving the other Parties notice
as provided above.
14.4 Holidays. If the date on which a notice is due, or a prescribed action
is necessary falls on a day that is not a Business Day, the date on which such
notice or action shall be due shall be extended until the next succeeding
Business Day.
ARTICLE 15
CONFIDENTIALITY
The Parties agree to define "Confidential Information" as all
information, data and other non-public information and materials (including
information concerning Buyer's or Seller's or Tosco's operations such as
information regarding maintenance at Buyer's Complex or the Bayway Refinery, the
Existing Plant or the Linden 6 Facility) relating to this Agreement and the
26
terms or conditions of this Agreement or disclosed pursuant to any term or
provision of this Agreement that is provided by a Party to one or more of the
Parties in written, graphical or other tangible form marked "Confidential" or
with similar legend clearly identifying the Party's proprietary interest, or in
oral form with the proviso that, if orally transmitted, such information shall
be identified as confidential and the confidential nature of such information
shall be confirmed in writing within thirty (30) days of the initial oral
disclosure. The Parties agree that all Confidential Information shall be kept
confidential and shall not be disclosed or used for any purpose other than
matters related to this Agreement; provided, however, that Confidential
Information may be disclosed to any Party on a need to know basis in accordance
with the terms of this Agreement. Such obligations of confidentiality shall
survive the termination of this Agreement by three (3) years. Each Party shall
be permitted to disclose Confidential Information to such Party's and its
Affiliates' officers, directors, employees, agents, counsel, accountants,
consultants, contractors or advisors who need to know such information for the
purpose of implementing this Agreement or the transactions contemplated hereby,
and agrees to notify such Persons of the confidential nature of such
Confidential Information, and to be responsible for any unauthorized disclosure
of such Confidential Information by such Persons. Seller shall be permitted to
disclose Confidential Information to those of its Lenders and prospective
Lenders or prospective purchasers who agree to keep such information
confidential by executing a confidentiality agreement in form and substance
which reasonably satisfies the provisions of this Article. Confidential
Information shall not be deemed confidential if it (i) was in the public domain
prior to the date hereof, (ii) becomes publicly available after the date hereof
other than as a result of the unauthorized disclosure thereof by a Party or by
an officer, director, employee, agent or Affiliate of a Party, or (iii) is
required to be disclosed pursuant to applicable laws or regulations or pursuant
to administrative or judicial process; provided, however, that the disclosing
Party provides the non-disclosing Parties with written notice of the
Confidential Information to be disclosed as far in advance of its disclosure as
is practicable and that, except with regard to disclosures to the Securities and
Exchange Commission, the disclosing Party uses its best efforts to obtain
assurances that confidential treatment will be accorded to such information. The
Parties shall be entitled to all remedies available at law or in equity to
enforce or seek relief in connection with this confidentiality obligation.
27
ARTICLE 16
FURTHER ASSURANCES
16.1 General. Each Party agrees to execute and deliver all further
instruments and documents, and take any further action that may be reasonably
necessary to effectuate the purpose and intent of this Agreement.
16.2 Permits and Governmental Approvals. Buyer and Seller shall cooperate
with each other and shall use reasonable efforts to assist each other in
maintaining all permits and approvals from any Governmental Authority required
for the operation of the Linden 6 Facility, Appurtenant Systems and
interconnections and for favorable Tax treatments. At Buyer's request after the
Commercial Operations Date, Seller shall use commercially reasonable efforts, at
Buyer's expense, to modify or amend any such permits or approvals; provided,
that such modifications or amendments shall have no material adverse effect on
Seller.
16.3 Financing. Buyer understands that Seller or its Affiliates may from
time to time arrange financing relating to the Linden 6 Facility, the Existing
Plant or both, and Buyer agrees to cooperate with Seller's or its Affiliates'
financing efforts. If any Lender requires any consents to this Agreement, Buyer
agrees to enter into good faith negotiations with Seller with respect to such
Lender's or investor's requested consents and will provide, at Seller's request,
opinions of counsel or estoppel certificates reasonably related thereto.
ARTICLE 17
MISCELLANEOUS
17.1 Severability. If any provision of this Agreement shall be held invalid
or unenforceable by any court of competent jurisdiction, then such holding shall
not invalidate or render unenforceable any other provision hereof and the
Parties shall immediately renegotiate in good faith such provision to eliminate
such invalidity or unenforceability, consistent with the intent of this
Agreement.
17.2 Captions, Titles and Headings. The captions, titles, and headings used
in this Agreement are for convenience only and shall not affect the construction
of any terms of this Agreement.
28
17.3 Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of New Jersey, without regard to principles of
conflict of laws thereof.
17.4 Non-Waiver. Except as may be expressly provided in this Agreement or
in a writing signed by the Party against whom a waiver is claimed, the failure
of any Party to insist in any instance on strict performance of any provision of
this Agreement shall not be construed as a waiver of any such provision or the
relinquishment of any rights thereunder in the future, but the same shall
continue and remain in full force and effect.
17.5 Relationship of the Parties. The Parties are, and intend to be,
independent contractors with respect to each other. THIS AGREEMENT SHALL NOT BE
INTERPRETED OR CONSTRUED TO CREATE AN ASSOCIATION, TRUST, PRINCIPAL-AGENT
RELATIONSHIP, JOINT VENTURE OR PARTNERSHIP BETWEEN THE PARTIES OR TO IMPOSE ANY
PARTNERSHIP, AGENCY OR FIDUCIARY OBLIGATION OR LIABILITY UPON ANY PARTY. No
Party shall have any right, power or authority to enter into any agreement or
undertaking for, or act on behalf of, or act as or be an agent or representative
of, or otherwise bind the other Parties, except as may be expressly provided
herein to perform a duty or obligation specifically set forth herein, and then
only to the extent reasonably necessary to perform such duty or obligation.
17.6 Parties in Interest. This Agreement shall inure only to the benefit of
Buyer and Seller and Tosco and their permitted successors and assigns. Nothing
contained in this Agreement, whether express or implied, is intended to confer
upon any Third Party any benefits, rights or remedies.
17.7 Non-Dedication of Facility. No part of the Linden 6 Facility shall be
dedicated by virtue of this Agreement for the sale of electrical or thermal
energy to the public generally and indiscriminately, for the exercise of a
public franchise, or in the exercise of a public utility function.
17.8 Modification. The provisions of this Agreement, including any
exhibits, may be modified only by written agreement duly executed by each Party.
29
17.9 Entire Agreement. This Agreement shall constitute the entire agreement
between the Parties and cancels and supersedes all previous agreements and
understandings between the Parties with respect to the subject matter hereof.
17.10 Attorneys' Fees. If any lawsuit or other action or proceeding
relating to this Agreement is brought by any Party against any other Party or
Parties hereto, the prevailing Party shall be entitled to recover reasonable
attorneys' fees, costs and disbursements (in addition to any other relief to
which the prevailing Party may be entitled).
17.11 Costs and Expenses. In any dispute where any Party is entitled to
reimbursement of costs, "costs" shall include interest on any judgment, court
costs, and reasonable legal fees and expenses (including allocated fees of
in-house counsel).
17.12 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall constitute an original but all of which, when
taken together, shall constitute only one legal instrument.
17.13 Survival of Obligations. Except as may be expressly provided in this
Agreement, termination of this Agreement for any reason shall not relieve a
Party of any obligation accruing or arising prior to such termination.
17.14 No Effect on Pending Litigation. This Agreement shall have no effect
whatsoever on the respective positions of the parties in Infineum USA ▇.▇. ▇.
▇▇▇▇▇ Technologies Linden Venture, L.P., Civil Action No. 00-3222 (WGB)
(D.N.J.) (the "Steam Agreement Litigation"). Nothing in this Agreement shall be
construed or used as an admission by any Party in connection with the Steam
Agreement Litigation and this Agreement shall not be used to support or to
defend any claim in the Steam Agreement Litigation.
17.15 Electricity Price for "Infineum Steam Agreement". Buyer and Seller
acknowledge that the "HTS Price" calculated in accordance with Exhibit B of this
Agreement shall be used as the value of the variable designated "HTS" in the
calculations made in accordance with Exhibit A of the Infineum Steam Agreement.
30
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the
dates shown beneath their respective signatures, intending the rights and
obligations of the Parties to become effective on the day and year first written
above.
JEDI LINDEN NB, L.L.C.
By: /s/ ▇▇▇▇ ▇ ▇'▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇. ▇'▇▇▇▇▇▇
Title: Vice President and Managing Director
INFINEUM USA, L.P.
By: /s/ S. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Name: S. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Title: Treasurer
--------------------------------------
TOSCO CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ III
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ III
------------------------------------
Title: Refinery Manager
------------------------------------
31
EXHIBIT A
PRICE OF ELECTRICITY
The price that Buyer shall pay to Seller for all Electricity furnished
to Buyer shall be determined as follows:
A. From and after Commercial Operation based on the HTS Price
effective February 7, 2001, and until a new HTS Rate Schedule becomes effective,
the price for all Electricity (in cents per kWh) shall be:
5.76 cents per kWh,
plus, when the Linden 6 Facility is operating and the Cost of
Fuel exceeds $6.00 per MMBtu, 0.315 multiplied by the difference
between the Cost of Fuel* less $6.00 per MMBtu. [Price for Electricity
= 5.76 + 0.315 x (Cost of Fuel - 6.00) for Cost of Fuel > $6.00 per
MMBtu]
B. From and after the Day upon which a new HTS Rate Schedule becomes
effective, the price for Electricity (in cents per kWh) shall be the calculated
as follows; of:
(1) If the Cost of Fuel is less than or equal to $7.00 per MMBtu,
then the price for Electricity shall be the HTS Price multiplied by 0.9 [Price
for Electricity = HTS Price Calculated in Exhibit B x 0.9];
(2) If the Cost of Fuel is greater than $7.00 per MMBtu, then the
price for Electricity shall be the greater of:
(a) HTS Price multiplied by 0.9 [calculation same as (1) above],
or
(b) the sum of HTS Price multiplied by 0.45
plus 0.6 cents,
plus 0.4053 multiplied by the Cost of Fuel [Price for Electricity
= (HTS Price Calculated in Exhibit B x 0.45) + 0.6 + (0.4053 x Cost of
Fuel)]
(3) If, for any Month, the Linden 6 Facility is not operated to
produce Electricity supplied to Infineum for the entire Month, then the price
for Electricity for such Month shall be the HTS Price multiplied by 0.9 for all
fuel prices [Price for Electricity + HTS Price Calculated in Exhibit B x 0.9];
provided, however, if at any time during this Agreement, the new HTS Price is
more than ten percent (10%) lower than the new HTS Price effective on
February 7, 2001, the Parties shall meet and negotiate the price for
Electricity.
2
EXHIBIT B
HTS PRICE(1)
SOURCE: Public Service Electric and Gas HTS Rate Schedule from web site at ▇▇▇.▇▇▇▇.▇▇▇
Third Revised Sheet Nos. 143 and 144 or equivalent/superseding sheets
High Tension Service - High Voltage Service
RATES(2) DESCRIPTION
-------- -----------
A On peak demand charge including NJ sales and use tax (SUT) (June through September) - S per kW-month
B On peak demand charge including NJ sales and use tax (SUT) (October through May) - $ per kW-month
C On peak kWh charge including NJ SUT - cents per kWh
D Intermediate kWh charge including NJ SUT - cents per kWh
E Off peak kWh charge including NJ SUT - cents per kWh
F Service charge
OTHER DATA DESCRIPTION SOURCE
---------- ----------- ------
Monthly kWh Infineum monthly usage Existing kWh meters - calculated as has been the practice
Load Factor Average load/peak load Average of January 2000 through June 2001 (ex Feb and
Mar 2001) for Bayway site - 0.9389
HRS Hours in the current month
CALCULATION PROCEDURE FOR MONTHLY ▇▇▇▇ (ALL RESULTS IN $):
----------------------------------------------------------
Monthly kWh kWh supplied by Tosco/Infineum meter readings
Peak kW Monthly kWh / (0.9389 x HRS) 0.9389 assumed constant
KILOWATT CHARGE: Peak kW x A or B A (June through September) B (October through May)
KILOWATT-HOUR CHARGE:
kWh x C x 0.41667/100 peak usage 14 hours per day, 5 days per week - 14 x 5/(24 x 7) = 0.041667
plus
kWh x D x 0.08333/100 intermediate usage 14 hours on Saturday, 12/(24 x 7) = 0.08333
plus
kWh x E x 0.50/100 off peak - rest of the time 1.0 - 0.41667 - 0.08333 = 0.50
(if kilowatt-hour charge were split between winter/summer in the future, consistent method would be used with split)
SERVICE CHARGE: F Monthly fee from rate schedule
TOTAL MONTHLY ▇▇▇▇: Kilowatt charge + kilowatt-hour charge + service charge
HTS PRICE = AVERAGE POWER COST = TOTAL MONTHLY ▇▇▇▇ / MONTHLY kWh * 100 (IN CENTS/kWh)
--------------
(1) This calculation of the HTS Price will be used for purposes of this
Agreement and the Infineum Steam Agreement.
(2) See Sample HTS Price Calculation with figures labeled A through F in
Exhibit C.
3
EXHIBIT C
SAMPLE HTS PRICE CALCULATION
Using PSE&G'S February 7, 2001 Rate Schedule
(Third Revised Sheet Nos. 143 and 144)
SAMPLE DATA:
Month October
Monthly kWh 3,960,000
A 9.4320
B 8.6130
C 6.0173
D 5.1434
E 4.4461
F 1823.47
Monthly kWh 3,960,000
Peak kWh 3,960,000/(0.9389 x 24 x 31) = 5668.95 kW
MONTHLY
CHARGE
-------
KILOWATT CHARGE: 5668.95 x 8.613 use Oct-May-"B" $48,827
KILOWATT-HOUR CHARGE:
Monthly kWh x C x 0.41667 / 100 $99,286
plus
Monthly kWh x D x 0.8333 / 100 $16,973
plus
Monthly kWh x E x 0.50 / 100 $88,033
SERVICE CHARGE: F $ 1,823
------
TOTAL MONTHLY ▇▇▇▇ $254,942
HTS PRICE = AVERAGE POWER COST = TOTAL MONTHLY ▇▇▇▇/MONTHLY kWh * 100 6.438 cents per kWh
4
PUBLIC SERVICE ELECTRIC AND GAS COMPANY CORRECTED
THIRD REVISED SHEET ▇▇. ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
▇.▇.▇.▇.▇. ▇▇. ▇▇ ELECTRIC SECOND REVISED SHEET NO. 143
RATE SCHEDULE HTS
HIGH TENSION SERVICE
(Continued)
HIGH VOLTAGE SERVICE:
SERVICE CHARGE:
Customer: $1,720.25 in each month [$1,823.47 including
New Jersey Sales and Use Tax (SUT)]
KILOWATT CHARGE IN THE MONTHS OF JUNE THROUGH SEPTEMBER:
ON-PEAK INTERMEDIATE OFF-PEAK
------- ------------ --------
Per kilowatt unless CHARGES CHARGES CHARGES
otherwise noted INCLUDING INCLUDING INCLUDING
CHARGES SUT CHARGES SUT CHARGE SUT
--------- -------- -------- -------- -------- --------
Generation Capacity $ 2.8333 $ 3.0033 $ 0.0000 $ 0.0000 $ 0.0000 $ 0.0000
Transmission Capacity $ 1.5058 $ 1.5961 $ 0.0000 $ 0.0000 $ 0.0000 $ 0.0000
Market Transition Charge $ 4.6130 $ 4.8898 $ 0.0000 $ 0.0000 $ 0.0000 $ 0.0000
Distribution Charge Remainder ** ** $ 0.0000 $ 0.0000 $ 0.0000 $ 0.0000
--------- -------- -------- -------- -------- --------
Total Kilowatt Charge $ 8.8980 $ 9.4320 $ 0.0000 $ 0.0000 $ 0.0000 $ 0.0000
Date of Issue: February 28, 2001 Effective: February 7, 2001
Issue by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Vice President and Corporate Rate Counsel
▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Filed pursuant to Orders of Board of Public Utilities dated August
24, 1999 and September 17, 1999 in Docket Nos.
EO97070461, EO97070462, EO97070463 and EF99060390
CORRECTED
PUBLIC SERVICE ELECTRIC AND GAS COMPANY THIRD REVISED SHEET NO. 144
SUPERSEDING
SECOND REVISED SHEET ▇▇. ▇▇▇
▇.▇.▇.▇.▇. ▇▇. ▇▇ ELECTRIC
RATE SCHEDULE HTS
HIGH TENSION SERVICE
(CONTINUED)
KILOWATT CHARGE IN THE MONTHS OF OCTOBER THROUGH MAY:
ON-PEAK INTERMEDIATE OFF-PEAK
------- ------------ --------
Per kilowatt unless CHARGES CHARGES CHARGES
otherwise noted INCLUDING INCLUDING INCLUDING
CHARGES SUT CHARGES SUT CHARGES SUT
------- --- ------- --- ------- ---
Generation Capacity $2.8333 $3.0033 $0.0000 $0.0000 $0.0000 $0.0000
Transmission Capacity $1.5058 $1.5961 $0.0000 $0.0000 $0.0000 $0.0000
Market Transition Charge $4.2141 $4.4669 $0.0000 $0.0000 $0.0000 $0.0000
Distribution Charge Remainder ** ** $0.0000 $0.0000 $0.0000 $0.0000
------- ------- ------- ------- ------- -------
Total Kilowatt Charge $8.1250 $8.6130 $0.0000 $0.0000 $0.0000 $0.0000
** The Total Kilowatt Charge and Market Transition Charge are billed on the
basis of monthly maximum demand. Generation Capacity and Transmission Capacity
are calculated on the basis of the assigned Capacity and Transmission Obligation
as determined below. The Distribution Charge Remainder per kilowatt will vary
monthly such that each customer's ▇▇▇▇ for the sum of the above individual
kilowatt charges (charge times demand or obligation as applicable), including
the Distribution Charge Remainder, equals the Total Charge times times the
applicable maximum demand.
KILOWATTHOUR CHARGE:
ON-PEAK INTERMEDIATE OFF-PEAK
------- ------------ --------
PER KILOWATTHOUR CHARGES CHARGES CHARGES
INCLUDING INCLUDING INCLUDING
CHARGES SUT CHARGES SUT CHARGES SUT
------- --- ------- --- ------- ---
Basic Generation Service 4.0590 cents 4.3025 cents 3.5332 cents 3.7452 cents 2.1529 cents 2.2821 cents
Market Transition Chg. (MTC) (0.4630) cents (0.4907) cents (0.7616) cents (0.8073) cents (0.0392) cents (0.0415) cents
Securitization Transition Chg. 0.6739 cents 0.7143 cents 0.6739 cents 0.7143 cents 0.6739 cents 0.7143 cents
MTC - Tax 0.2413 cents 0.2558 cents 0.2413 cents 0.2558 cents 0.2413 cents 0.2558 cents
Distribution Charge 0.1470 cents 0.1558 cents 0.1470 cents 0.1558 cents 0.1470 cents 0.1558 cents
Adjustment Charges:
Societal Benefits Charge 0.5778 cents 0.6125 cents 0.5778 cents 0.6125 cents 0.5778 cents 0.6125 cents
Non - Utility Generation
Transition Charge 0.4407 cents 0.4671 cents 0.4407 cents 0.4671 cents 0.4407 cents 0.4671 cents
------ ------ ------ ------ ------ ------
Total 5.6767 cents 6.0173 cents 4.8523 cents 5.1434 cents 4.1944 cents 4.4461 cents
The MTC-Tax Charge shall be combined with the Securitization Transition Charge
and the Non-Utility Generation Transition Charge shall be combined with the
Market Transition Charge for Billing.
DATE OF ISSUE: February 28, 2001 EFFECTIVE: February 7, 2001
Issued by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Vice President and Corporate Rate Counsel
▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Filed pursuant to Orders of Board of Public Utilities dated August 24, 1999
and September 17, 1999 in Docket Nos. EO97070461, EO97070462, EO97070463 and
EF99060390
EXHIBIT D
NOTES:
1. ALL METERS INSTALLED BY BUYER IN 230kV BAYWAY SUB.
2. BUYER'S (BW) METERS OWNED, MAINTAINED & OPERATED BY BUYER.
3. SELLER'S (ECP) METERS OWNED, MAINTAINED & OPERATED BY SELLER.
4. INVOICE METERING BASED ON ECP #1 + 2 + 3.
5. BAYWAY METERS USED FOR CHECK METERS.
[GRAPH]