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EXHIBIT 10.8C
ASSIGNMENT OF POWER PURCHASE AGREEMENT
THIS ASSIGNMENT dated as of December 22, 1989, between COGEN
TECHNOLOGIES LINDEN, LTD., a Texas limited partnership ("Cogen"), and COGEN
TECHNOLOGIES LINDEN VENTURE, L.P., a Delaware limited partnership (the
"Partnership") (together, the "Parties" and each, a "Party"),
W I T N E S S E T H:
WHEREAS, Cogen has entered into that certain Agreement of Limited
Partnership of Cogen Technologies Linden Venture, L.P. dated as of December 4,
1989 (the "Partnership Agreement"), under which Partnership Agreement the
Delaware limited partnership known as Cogen Technologies Linden Venture, L.P.
was created; and
WHEREAS, Cogen has agreed to assign to the Partnership all of Cogen's
rights, titles and interests in and to the Power Purchase Agreement dated April
14, 1989 by and between Cogen Technologies, Inc., a Texas corporation, and
Consolidated Edison Company of New York, Inc. (the "Power Purchase Agreement"),
which Power Purchase Agreement heretofore, with the approval of Consolidated
Edison Company of New York, Inc., was assigned by Cogen Technologies, Inc. to
Cogen; and
WHEREAS, the Power Purchase Agreement provides by its terms that it
may be assigned to an entity controlling, controlled by, or under common
control with Cogen Technologies,
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Inc. ("Affiliates") or to a partnership in which Cogen Technologies, Inc. or
any of its Affiliates is a partner, without the necessity of obtaining the
consent of Consolidated Edison Company of New York, Inc.; and
WHEREAS, since the Partnership is an Affiliate of Cogen Technologies,
Inc. and since the Partnership is a partnership in which an Affiliate of Cogen
Technologies, Inc. is a partner, Cogen may assign the Power Purchase Agreement
in accordance with the terms thereof to the Partnership;
NOW, THEREFORE, in furtherance of the foregoing and for Ten Dollars
($10.00) and other good and valuable consideration, the Parties agree as
follows:
ARTICLE 1
ASSIGNMENT OF RIGHTS, TITLES AND INTERESTS
IN THE POWER PURCHASE AGREEMENT
Cogen hereby assigns, transfers, conveys and sets over to the
Partnership all of Cogen's rights, titles and interests in, to and under the
Power Purchase Agreement and all proceeds thereof, including without
limitation:
(a) all payments due and to become due under the Power
Purchase Agreement, whether as contractual obligations, damages
payable to Cogen for any breach thereunder, or otherwise;
(b) all of Cogen's claims, rights, powers or privileges and
remedies under the Power Purchase Agreement; and
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(c) all of Cogen's rights under the Power Purchase Agreement
(i) to enforce the Power Purchase Agreement, (ii) to make
determinations, (iii) to exercise any elections (including, but not
limited to, election of remedies) or options, (iv) to amend, modify or
supplement the Power Purchase Agreement, (v) to enforce or execute any
checks, or other instruments or orders, (vi) to file any claims and
(vii) to take any action which (in the opinion of the Partnership) may
be necessary or advisable in connection with any of the foregoing.
ARTICLE 2
ASSUMPTION OF OBLIGATIONS UNDER
THE POWER PURCHASE AGREEMENT AND OF
POWER PURCHASE AGREEMENT INDEBTEDNESS
The Partnership hereby assumes (i) any and all of Cogen's obligations
and liabilities under the Power Purchase Agreement and (ii) any and all
obligations assumed by Cogen pursuant to the Assignment of Power Purchase
Agreement dated July 21, 1989 by and between Cogen Technologies, Inc. and Cogen
(under which the Power Purchase Agreement was assigned to Cogen) and undertakes
to punctually perform any and all of Cogen's obligations under the Power
Purchase Agreement and to punctually pay on or before the due date thereof,
all other indebtedness and obligations assumed by Cogen under said Assignment
of Power Purchase Agreement dated July 21, 1989.
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ARTICLE 3
INDEMNIFICATION
3.1 Indemnification of the Partnership. Cogen shall indemnify and hold
the Partnership and its successors and assigns harmless from and against all
damages, losses or expenses suffered or paid as a result of any claims,
demands, suits, causes of action, proceedings, judgments and liabilities,
including reasonable counsel fees incurred in litigation or otherwise,
assessed, incurred or sustained by or against the Partnership and its
successors and assigns with respect to or arising out of an act or omission of
Cogen, its employees, subcontractors, agents or representatives, in connection
with the Power Purchase Agreement, which act or omission occurred prior to the
date of this Assignment.
3.2 Indemnification of Cogen. The Partnership shall indemnify and hold
Cogen and its successors and assigns harmless from and against all damages,
losses or expenses suffered or paid as a result of any claims, demands, suits,
causes of action, proceedings, judgments and liabilities, including reasonable
counsel fees incurred in litigation or otherwise, assessed, incurred or
sustained by or against Cogen and its successors and assigns with respect to or
arising out of an act or omission of the Partnership, its employees,
subcontractors, agents or representatives, in connection with the Power
Purchase Agreement, which act or omission occurred on or subsequent to the date
of this Assignment.
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ARTICLE 4
MISCELLANEOUS
4.1 Notices. All notices, requests, demands or other communications to
or upon the respective Parties hereto shall be deemed to have been duly given
or made two (2) calendar days after being deposited in the mails, registered or
certified mail, postage prepaid, or in the case of telex, telegraphic or cable
notice, twenty-four (24) hours after being sent, or in the case of personal
delivery, upon receipt, addressed as follows:
Cogen Technologies Linden Venture, L.P.
0000 Xxxxx Xxxxxx Building
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attn: Xxxxxx X. XxXxxx
Cogen Technologies Linden, Ltd.
0000 Xxxxx Xxxxxx Building
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attn: Xxxxxx X. XxXxxx
or to such other addresses as a Party may hereafter specify to the other in
writing.
4.3 No Waiver; Cumulative Remedies. No failure to exercise, and no
delay in exercising, any right, power or privilege hereunder, shall operate as
a waiver thereof; nor shall any single or partial exercise of any right, power
or privilege hereunder preclude or require any other or future exercise thereof
or the exercise of any other right, power or privilege. All rights, powers and
remedies granted to any
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Party hereto and all other agreements, instruments and documents executed in
connection with this Assignment shall be cumulative, may be exercised singly or
concurrently and shall not be exclusive of any rights or remedies provided by
law.
4.4 Headings. The section and subsection headings used in this
Assignment are for convenience only and shall not affect the construction of
this Assignment.
4.5 Severability. In case any one or more of the provisions contained
in this Assignment shall be invalid, illegal or unenforceable in any respect
under any law, the validity, legality and enforceability of the remaining
provisions contained herein and therein shall not in any way be affected or
impaired thereby.
4.6 Execution of Counterparts. This Assignment may be executed in any
number of counterparts. All such counterparts shall be deemed to be originals
and shall together constitute but one and the same instrument.
4.7 Binding Effect. This Assignment shall be binding upon and inure to
the benefit of each of the Parties hereto and their respective successors and
assigns.
4.8 Governing Law. This Assignment shall be governed by, and construed
and interpreted in accordance with, the internal laws of the State of New York.
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IN WITNESS WHEREOF, this Assignment has been executed and delivered as
of the date and year first above written.
COGEN TECHNOLOGIES LINDEN, LTD.
By COGEN TECHNOLOGIES, INC.,
General Partner
By /s/ XXXXXX X. XXXXXX
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Xxxxxx X. XxXxxx (print name)
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President (title)
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COGEN TECHNOLOGIES LINDEN VENTURE, L.P.
By COGEN TECHNOLOGIES LINDEN,
LTD., General Partner
By Cogen Technologies, Inc.,
General Partner
By /s/ XXXXXX X. XXXXXX
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Xxxxxx X. XxXxxx (print name)
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President (title)
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