EXHIBIT 10.24
Execution Copy
TERMINATION AGREEMENT
This TERMINATION AGREEMENT (this
“ Agreement ”) is entered into on the 2nd day of
June, 2004, by and between CAMBRIDGE ELECTRIC LIGHT COMPANY, a
Massachusetts corporation having its principal place of business at
800 Boylston Street, Boston, Massachusetts 02199 (“
Cambridge ”), and PITTSFIELD GENERATING COMPANY, L.P.
(f/k/a Altresco Pittsfield, L.P.), a Delaware limited partnership
with a principal place of business at 235 Merrill Road, Pittsfield,
Massachusetts (“ Pittsfield ”).
W I T N E S
S E T H :
WHEREAS, Cambridge and Pittsfield
are parties to that certain Power Sale Agreement, dated
February 20, 1992, as amended by an Amendment to Power Sale
Agreement dated as of November 7, 1994 and a Second Amendment
to Power Purchase Agreement dated as of November 21, 1996 (as
so amended, the “ Power Purchase Agreement ”),
pursuant to which Pittsfield sells to Cambridge, and Cambridge
purchases from Pittsfield, a seventeen and two-tenths per cent
(17.2%) entitlement to the capacity and associated electric
energy produced by Pittsfield’s facility situated in
Pittsfield, Massachusetts (the “ Facility ”);
and
WHEREAS, Pittsfield and Cambridge
desire to terminate the Power Purchase Agreement pursuant to, and
in accordance with, the terms and provisions contained
herein.
NOW, THEREFORE, in consideration of
the premises and of the mutual covenants herein contained, the
parties hereto hereby agree as follows:
1. Definitions
. Capitalized terms used
herein without definition shall have the respective meanings given
to such terms in the Power Purchase Agreement. In addition, the
term “ Business Day ” shall mean a day other
than a Saturday, Sunday or any other day which is a legal holiday
or a day on which banking institutions are authorized or required
by law to close or be closed in Massachusetts.
2. Effectiveness
.
2.1. The “ Effective
Date ” shall be the third Business Day after the first
date on which all of the following conditions have been satisfied:
(i) approval by the Massachusetts Department of
Telecommunications and Energy (“ DTE ”), in form
and substance reasonably satisfactory to the parties, of
(A) this Agreement, including but not limited to the
termination of the Power Purchase Agreement pursuant to the terms
hereof, and (B) the full recovery of the Termination Payments
through Cambridge’s Transition Charge (as defined under G.L.
c. 164, Section 1G), and either (x) the expiration of any
appeal periods applicable to such DTE approval, or (y) if an
appeal of such approval is filed within any such applicable appeal
period, the issuance of a final ruling denying such appeal or
resolving such appeal on terms acceptable to both parties
(collectively, the “ Cambridge Approvals ”);
(ii) notice of termination (the “ FERC Notice
”) of the Power
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Purchase Agreement is provided by Pittsfield to
the Federal Energy Regulatory Commission (“ FERC
”) consistent with FERC’s requirements therefore and
such FERC Notice becomes effective; (iii) Cambridge and
Pittsfield shall have given (or been deemed to have given) notice
that the Cambridge Approvals are acceptable pursuant to
Section 2.2; and (iv) Cambridge and Pittsfield shall have
given (or been deemed to have given) notice that the final order or
other determination approving, disapproving or ruling in any way on
the FERC Notice is acceptable pursuant to Section 2.3;
provided, however, that notwithstanding satisfaction of the
foregoing conditions, the Effective Date shall be no earlier than
October 1, 2004. Notwithstanding the foregoing, this Agreement
shall terminate and be of no further force or effect whatsoever
(including, without limitation, the provisions of Sections 3, 4,
and 5 hereof) as provided in Section 7.
2.2. No later than five
(5) Business Days after the issuance by DTE or any appellate
court or other judicial body with jurisdiction over the DTE, of any
order or other determination approving, disapproving or ruling in
any way on this Agreement, Cambridge shall provide Pittsfield with:
(i) written notice of such order or determination including a
copy thereof; and (ii) certification of an authorized officer
of Cambridge as to whether such order or determination is
reasonably acceptable to Cambridge. No later than five
(5) Business Days after receipt of such notice and
documentation, Pittsfield shall provide Cambridge with a
certification of an authorized officer of Pittsfield as to whether
such order or determination is reasonably acceptable to Pittsfield.
Failure by either party to provide such written certification
within five (5) Business Days of a written request by the
other party shall constitute certification that such order or
determination is reasonably acceptable to such party.
2.3 No later than five
(5) Business Days after the issuance by FERC or any appellate
court or other judicial body with jurisdiction over the FERC, of
any order or other determination approving, disapproving or ruling
in any way on the termination of the Power Purchase Agreement,
Pittsfield shall provide Cambridge with: (i) written notice of
such order or determination including a copy thereof any; and
(ii) certification of an authorized officer of Pittsfield as
to whether such order or determination is reasonably acceptable to
Pittsfield. No later than five (5) Business Days after receipt
of such notice and documentation, Cambridge shall provide
Pittsfield with a certification of an authorized officer of
Cambridge as to whether such order or determination is reasonably
acceptable to Cambridge. Failure by either party to provide such
written certification within five (5) Business Days of a
written request by the other party shall constitute certification
that such order or determination is reasonably acceptable to such
party.
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3. Termination of
Agreements .
3.1. Agreement to Terminate .
Pittsfield and Cambridge hereby agree that, effective as of
12:00:01 am eastern time on the Effective Date, the Power Purchase
Agreement shall be deemed terminated without any further action
being required on the part of either Cambridge or Pittsfield,
provided that Pittsfield has received confirmation of the transfer
of the initial Termination Payment to be made pursuant to
Section 4 of this Agreement. Upon such termination:
(i) Cambridge shall have no obligation whatsoever under the
Power Purchase Agreement, including, without limitation, any
obligation to purchase or accept electric energy or capacity
produced by the Facility, and (ii) Pittsfield shall have no
obligation whatsoever under the Power Purchase Agreement,
including, without limitation, any obligation to sell to Cambridge
any electric energy or capacity produced by the Facility.
Notwithstanding the preceding sentence and said termination of the
Power Purchase Agreement: (a) Cambridge shall remain obligated
to make payments to Pittsfield pursuant to the terms of the Power
Purchase Agreement on account of any electric energy and capacity
produced by the Facility and supplied to Cambridge at any time up
to the Effective Date (“ PPA Payments ”), to the
extent that any such amounts remain unpaid on the Effective Date;
and (b) Pittsfield shall remain obligated to make any PPA
Refunds. “ PPA Refunds ” shall be any amounts
owed by Pittsfield to Cambridge pursuant to the terms of the Power
Purchase Agreement on account of adjustments or reconciliations
resulting from errors in measuring, or calculating charges for,
energy or capacity delivered by Pittsfield to Cambridge at any time
up to the Effective Date that Cambridge provides notice of no later
than ninety (90) days after the Effective Date. Any disputes
regarding PPA Payments and/or PPA Refunds shall be resolved
pursuant to the terms of the Power Purchase Agreement. The parties
agree to cooperate with each other in taking any and all actions
that may be reasonably requested by the other in order to
facilitate the approval of this Agreement by the DTE and, if this
Agreement is approved by the DTE in for and substance acceptable to
the parties, the termination of the Power Purchase
Agreement.
3.2. Release of Liens . On
the Effective Date, Cambridge shall release and discharge any and
all mortgages, security interests, letters of credit and/or other
liens (collectively, “ Liens ”) that it may have
on or with respect to the Facility or Pittsfield, including without
limitation: (a) the Agreement in Lieu of Second Mortgage dated
as of March 20, 1992 among Cambridge, Pittsfield and certain other
parties; (b) the Declaration of Easements, Covenants and
Restrictions made by Pittsfield and the owner participant under
Pittsfield’s lease financing dated March 20, 1992; and
(c) the Accommodation Agreement dated as of March 20,
1992 among Pittsfield, Cambridge and certain other parties.
Cambridge shall execute and deliver any and all documents and take
any further actions that Pittsfield may reasonably request in order
to effectively release and discharge all of such Liens.
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4. Payments by Cambridge
.
4.1 Termination Payments .
For and in consideration of Pittsfield’s agreement to
terminate the Power Purchase Agreement, Cambridge shall pay, and
hereby promises to pay, to the order of Pittsfield the following
monthly payment amounts (collectively, the “ Termination
Payments ”, and individually, each monthly payment a
“ Termination Payment ”); provided that the
first Termination Payment shall be due on the Effective Date and
shall be equal to (x) the monthly payment amount owed for the
month in which the Effective Date occurs multiplied by (y) a
fraction, the numerator of which is the number of days remaining in
such month (including the Effective Date) and the denominator of
which is the number of days in such month.
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Calendar Year During Which
Termination
Payment is Owed
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Termination
Payment Amount
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2004
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2005
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2006
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2007
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2008
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After the Effective Date, Cambridge shall make
Termination Payments on the first Business Day of each calendar
month beginning with the month following the month in which the
Effective Date occurs and continuing through and including
December 1, 2008. Each Termination Payment shall be made by
wire transfer to an account designated in writing from time to time
by Pittsfield.
4.2 Unconditional Obligation
. Cambridge’s obligations to make each Termination Payment
when due under this Agreement are subject to the terms and
conditions set forth in this Agreement and are otherwise absolute,
unconditional and irrevocable and are not subject to cancellation,
termination, modification, repudiation, excuse or substitution by
Cambridge. Cambridge is not entitled to any abatement, reduction,
offset, defense or counterclaim with respect to the obligations to
make each Termination Payment when due under this Agreement for any
reason whatsoever.
4.3 PPA Payments . Cambridge
shall pay Pittsfield for: (a) all energy delivered up to the
Effective Date; and (b) any other charges owed by Cambridge
pursuant to the Power Purchase Agreement with respect to the month
in which the Effective Date occurs, which charges shall be prorated
based on the number of days in such month during which the Purchase
Power Agreement was in effect.
5. Releases
.
5.1. Releases by Cambridge .
Effective as of midnight on the Effective Date, Cambridge, for
itself, its successors and assigns, hereby releases and forever
discharges Pittsfield, the general and limited partners of
Pittsfield, all of the officers, directors, employees and agents of
Pittsfield and all of the partners, officers, directors,
