EXECUTION COPY
HSC TERMINATION AGREEMENT dated as of August 1,
1995, among THE HARTFORD STEAM COMPANY, a Connecticut corporation ("HSC"),
CONNECTICUT NATURAL GAS CORPORATION, a Connecticut corporation
("Connecticut Natural Gas"), ENERGY NETWORKS, INC. (formerly known as
Affiliated Resources Corporation), a Connecticut corporation ("ENI"), and
HARTFORD COGENERATION LIMITED PARTNERSHIP (formerly known as O'Brien
(Hartford) Cogeneration Limited Partnership), a Delaware limited
partnership ("Partnership").
In consideration of the mutual agreements herein contained and
other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
Definitions
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Unless the context otherwise requires, terms used herein have
the meanings assigned to them in the Release (defined below) except that
the following terms used herein have the following meanings (each agreement
referred to below meaning such agreement as amended, modified and
supplemented from time to time):
"ESCROW AGREEMENT" means the escrow agreement to be entered
into by Partnership pursuant to the Letter of Intent.
"LM GAS TURBINES" means the items described in Schedule 1
attached hereto.
"PROCEEDS ACCOUNT" means that account established at Sumitomo
pursuant to the Proceeds Cash Collateral Agreement to be dated the Closing
Date among Partnership, HSC and Sumitomo.
"RELEASE" means a Mutual Release substantially in the form
attached hereto as Exhibit A, as such Mutual Release may be modified prior
to execution thereof in a manner not materially adverse to the parties
hereto, it being understood that the addition of parties to the Mutual
Release is not a materially adverse modification.
"RELEVANT DOCUMENTS" means the Steam Supply Agreement, the
Facility Operating Agreement, the Site Lease Agreement, the Subordination
and Contingency Agreement and the Subordination and Non-Disturbance
Agreement.
"REMOVAL CONTRACT" means the removal contract to be entered
into by Partnership pursuant to the Letter of Intent.
"TERMINATION" means the termination pursuant to this Agreement
of (i) each of the Relevant Documents and all rights and obligations of
each of the parties thereunder (whether monetary or otherwise), including,
without limitation, all rights and obligations of each of the parties
thereunder that are stated in such documents to survive termination and
(ii) all mortgages, liens, pledges and other security interests created by
Partnership pursuant to or in connection with, the Relevant Documents.
"TERMINATION DOCUMENTS" means this Agreement, the Release, the
Note, the Mortgage, the Bill of Sale, the Quitclaim Deeds and the
Assignment Agreement.
"TRANSFER DATE" means the later of September 30, 1995 and the
first business day following the thirteenth day after disconnection of the
LM Gas Turbines and the switch over to HSC's existing boilers.
"VALUE OF KEROSENE" means $0.57085 per gallon times the number
of gallons of kerosene to be transferred by Partnership to HSC on the
Closing Date.
ARTICLE II
Closing
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SECTION 2.01. TRANSACTIONS EFFECTED AT CLOSING. The parties
hereto agree that on the Closing Date the following transactions shall
occur and take effect (the "Closing"):
(a) Termination;
(b) payment by Partnership to HSC of $4.5 million or such
larger amount as Partnership may determine;
(c) delivery by Partnership to HSC of a note substantially in
the form attached hereto as Exhibit B (the "Note"), in a principal amount
equal to the difference between (i) $9.35 million and (ii) the Value of
Kerosene plus the amount paid pursuant to paragraph (b) above;
(d) execution and delivery by the parties hereto of the
Release;
(e) execution and delivery by Partnership of the Mortgage and
Security Agreement (the "Mortgage") substantially in the form attached
hereto as Exhibit C;
(f) execution and delivery by Partnership of a letter of intent
substantially in the form attached hereto as Exhibit D and (the "Letter of
Intent");
(g) execution and delivery of a Conditional Assignment of
Contract and Escrow Agreement substantially in the form of Exhibit E,
attached hereto;
(h) delivery of releases and termination statements for the
encumbrances listed on Schedule 2 attached hereto, and a termination of the
Site Lease, all in form and substance satisfactory to HSC; and
(i) the determination and settling of all existing accounts
between Partnership on the one hand and HSC, ENI and CNG on the other.
SECTION 2.02. DETERMINATION AND NOTICE OF CLOSING DATE.
Partnership shall deliver to each of the other parties hereto written
notice setting forth the date (the "Closing Date") on which the
transactions in Section 2.01 shall occur, which date shall be (i) a date on
which all of the conditions precedent set forth in Section 2.03 shall have
been satisfied or waived and (ii) not less than 3 days after the date of
such notice. Partnership may from time to time postpone the Closing Date,
but not to a date later than September 30, 1995.
SECTION 2.03. CONDITIONS PRECEDENT TO THE OCCURRENCE OF THE
CLOSING DATE. The occurrence of the Closing on the Closing Date shall be
subject to the satisfaction of the following conditions precedent (except
to the extent waived by the benefitted party or parties):
(a) TERMINATION. The transactions contemplated by the
Termination and Release Agreement shall be consummated simultaneously with
the Closing.
(b) CONSENTS AND APPROVALS. All governmental approvals,
including that of the bankruptcy court overseeing the bankruptcy of OEE,
required to be taken, given or obtained by or from any governmental
authority and all consents, permits and licenses of Persons (including any
trustee or holder of any indebtedness or obligation of a party hereto)
required to be taken, given or obtained, in each case with respect to the
consummation of the transactions contemplated by this Agreement, that are
necessary or, in the opinion of counsel to a party hereto, advisable in
connection with the consummation of the transactions contemplated hereby,
shall have been taken, given or obtained and shall be in full force and
effect on the Closing Date and shall not be subject to any pending
proceedings or appeals, administrative, judicial or otherwise, and, unless
all parties with a right of appeal have waived such right, the times for
appeal with respect to any thereof shall have expired (or, if an appeal
shall have been taken, it shall have been dismissed).
(c) RELEASE. Prior to or simultaneously with the Closing,
each other party to the Release (except for those parties that any party
hereto deems unnecessary, as conclusively evidenced by such party's
execution and delivery of the Release) shall have executed and delivered,
or is executing and delivering, the Release.
(d) REPRESENTATIONS AND WARRANTIES. Each of the
representations and warranties made herein shall be true and correct on and
as of the Closing Date.
(e) TERMINATION OF AGREEMENTS. All agreements and other
arrangements with any Person relating to the Project shall have been
terminated or settled to the satisfaction of Partnership, or Partnership
shall have received on the Closing Date assurances satisfactory to it that
such agreements and arrangements shall be terminated or settled.
ARTICLE III
Post-Closing Transfers
-----------------------
SECTION 3.01. TRANSFER OF EQUIPMENT. On the Transfer Date,
Partnership will execute and deliver to HSC a bill of sale (the "Bill of
Sale"), substantially in the form attached hereto as Exhibit F and
quitclaim deeds (the "Quitclaim Deeds") substantially in the forms attached
hereto as Exhibits G and H.
SECTION 3.02. TRANSFER OF AIR PERMITS. Partnership agrees to
execute a consent order substantially in the form attached hereto as
Exhibit I (the "Consent Order") at the Closing or as soon thereafter as the
Consent Order is approved by the Commissioner of the Connecticut Department
of Environmental Protection. Partnership will transfer to HSC no later
than the Transfer Date, to the extent permissible by applicable law, all
rights to the Partnership's existing air permits and, upon execution of the
Consent Order, will assign to HSC all of Partnership's rights to certain
emission reduction credits of nitrogen oxides as required by the Consent
Order and described in the Agreement for the Transfer of Emission Reduction
Credits of Nitrogen Oxides.
ARTICLE IV
Obligations of Connecticut Natural Gas,
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ENI, HSC and Partnership After the Closing Date
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SECTION 4.01. PROVISION OF STEAM. (a) After the Closing Date
through the Transfer Date, Partnership, using ENI employees, shall turn off
the Facility's LM Gas Turbines and shall turn on and operate all five (5)
of the HSC boilers described in the Relevant Documents in order to supply
steam to HSC as if the Steam Supply Agreement were still in effect.
Partnership shall satisfy its maintenance obligations with respect to such
boilers as set forth in the Steam Supply Agreement. Seitel Gas and Energy
Corp. has been nominated by Partnership to provide gas for all of the
Project requirements related to the production of steam for HSC until the
Transfer Date, and Partnership shall pay for such gas. Partnership will
utilize Connecticut Natural Gas for the transportation of gas at the
interruptible transportation rate.
(b) Partnership shall cause Operator, within fifteen (15) days
after the Closing Date, using ENI employees, to secure the Project by
closing all valves, bleeding all lines, and otherwise making the Facility
safe for dismantling and transportation.
(c) Partnership shall remove, or cause to be removed, the LM
Gas Turbines from the Demised Premises (as defined in the Mortgage) and
shall inform HSC of the location of such LM Gas Turbines.
(d) During demobilization, the designated spokesperson for
ENI, HSC and Connecticut Natural Gas shall be Donald Ludington, and the
designated spokesperson for the Partnership shall be A. Ketheech Aran.
Prior to commencement of demobilization, Partnership shall cause each
contractor performing work thereon to designate a spokesperson to
Partnership and ENI.
(e) Prior to commencement of demobilization, Partnership shall
cause Operator to inform ENI of the number and names of ENI employees
needed to assist in the demobilization and the anticipated periods of time
during which their assistance will be required. Partnership shall
reimburse ENI for all costs incurred by ENI as to such employees for the
time during which they are assisting with the demobilization and during
which they are operating the HSC boilers for the account of Partnership.
Such reimbursement shall be calculated on the same basis as it was under
the Relevant Documents before such documents were terminated.
SECTION 4.02. OPERATING EXPENSES. Until the Transfer Date,
Partnership shall reimburse HSC for the reasonable cost of ordinary
electricity use by Partnership in connection with the operation of the
boilers and shall continue to pay to HSC, ENI and Connecticut Natural Gas
their respective charges for use of employees, fuel, river water, etc. as
provided in the Steam Supply Agreement, and HSC shall continue to pay
Partnership for the steam described in Section 4.01(a) as provided in the
Steam Supply Agreement; provided, however, that Partnership hereby directs
HSC to transmit to ENI and Connecticut Natural Gas any sums due ENI or
Connecticut Natural Gas for the account of Partnership; to setoff any
amounts due to HSC from Partnership against payments due from HSC to
Partnership; and to pay to Partnership only such amounts as remain after
such directed payments and setoffs. If the amount of such directed
payments and setoffs are less than the amounts owed by Partnership to HSC,
ENI or Connecticut Natural Gas, Partnership shall pay such amounts within
ten (10) days after a written invoice therefor. If the amount of such
directed payments and setoffs are less than the amounts owed to Partnership
by HSC, HSC shall pay such amounts within ten (10) days after a written
invoice therefor.
SECTION 4.03. PROPERTY TAXES. (a) Partnership will pay all
personal property taxes to the City of Hartford for all periods before and
after the Closing with respect to all personal property retained by
Partnership and not transferred to HSC pursuant to the Bill of Sale and the
Quitclaim Deeds, and HSC will have no responsibility for any such taxes.
(b) Partnership will pay personal property taxes to the City
of Hartford with respect to the property transferred to HSC or ENI pursuant
to the Bill of Sale and the Quitclaim Deeds for all periods through June
30, 1995, and thereafter property taxes to the City of Hartford on such
property shall be adjusted after the Closing, but as of the Closing Date,
between Partnership and HSC in the manner customary for the adjustment of
real property taxes in the City of Hartford. The parties agree that for
purposes of such adjustment, the value to be used in respect of such
personal property transferred to HSC or ENI pursuant to the Bill of Sale
and the Quitclaim Deeds will be calculated based on good faith estimates of
values of personal property transferred to HSC.
(c) Partnership shall remain responsible for all real property
taxes to the City of Hartford for which it is currently responsible for all
periods through June 30, 1995, and thereafter property taxes to the City of
Hartford with respect to such real property shall be adjusted at the
Closing as of the Closing Date between Partnership and HSC in the manner
customary for the adjustment of real property taxes in the City of
Hartford.
SECTION 4.04. ACCESS TO SITE. (a) ENI, HSC and Connecticut
Natural Gas agrees to provide to Partnership and its agents, for no
additional consideration:
(i) rights of access to the Demised Premises (as defined in the
Site Lease Agreement) and easements described in the Site Lease Agreement;
(ii) rights to access for the purpose of performing work
required by the Removal Contract; and rights to service boilers as provided
in Paragraphs 1 and 2 of a license agreement from HSC to Partnership dated
as of March 1, 1989, but no other rights as to construction or as to tanks;
(iii) rights to ingress and egress to the extent required by
the Removal Contract (but no other rights as to construction) pursuant to a
license agreement from Connecticut Natural Gas to Partnership dated as of
March 1, 1989; and
(iv) use of an area for temporary "laydown" purposes (but not
storage) adjacent to and extending 25 feet north of the existing structure
occupied by HSC and ENI in which the cogeneration facility is located, and
ENI will cooperate with the Partnership's removal contractor to seek to
locate additional laydown areas for use by the contractor.
(b) In connection with the rights specified in paragraph (a)
above, Partnership agrees that:
(i) the exercise of such rights shall be performed in a manner
which will not obstruct access by ENI, HSC or Connecticut Natural Gas, as
the case may be, to the relevant property or its property adjacent or
contiguous to such property and in a manner which will cause the least
practicable interference with such party's operations on such property or
such adjacent or contiguous property;
(ii) during the term of this Agreement and until completion of
the removal and restoration activities provided for in Section 7.04 hereof,
it shall keep in force and effect a public liability and property damage
insurance with respect to its entry upon and conduct upon the Demised
Premises insuring ENI, HSC or Connecticut Natural Gas, as the case may be,
against liability to the same extent and in the manner set forth in Section
9 of the Site Lease Agreement; and
(iii) it agrees to indemnify and save ENI, HSC and Connecticut
Natural Gas harmless from and against all liability or expense on account
of any accident or injury to ENI, HSC and Connecticut Natural Gas or any
other person or the property of ENI, HSC or Connecticut Natural Gas, as the
case may be, or any other person as a result of or arising from entry into
or activities upon the Demised Premises or the above access and laydown
areas by the Partnership, its contractors, subcontractors, and its or their
servants, agents, representatives or invitees and to repair any and all
damage to property of ENI, HSC or Connecticut Natural Gas, as the case may
be, caused by Partnership or resulting from or arising out of such entry.
SECTION 4.05. CERTAIN REMITTANCES. Partnership agrees that
within two business days of the Escrow Release Date (as defined in the
Sumitomo Partial Release), it will remit to HSC HSC's pro rata portion of
interest, if any, earned on the funds deposited in the Proceeds Account
plus any default interest owed by Partnership under the Note. HSC agrees
that within two business days of the Escrow Release Date it will remit to
Partnership any portion of the original principal amount of the Note that
has been prepaid as of the Escrow Release Date.
ARTICLE V
Representations and Warranties
------------------------------
Each of the parties hereto represents and warrants on and as of
the Closing Date and the Transfer Date that:
SECTION 5.01. AUTHORIZATION; NO CONFLICT. It has duly
authorized by all necessary action the execution, delivery and performance
of each of the Termination Documents to which it is a party, and neither
its execution and delivery thereof nor its consummation of the transactions
contemplated thereby nor its compliance with any of the terms and
provisions thereof (i) except for such approvals or consents as may have
been obtained, does or will require any approval of its stockholders or
partners or any approval or consent, permit or license of any person
(including any trustee or holder of any of its indebtedness or
obligations), (ii) does or will contravene any existing governmental rule
of any governmental authority applicable to or binding on it or any of its
properties or (iii) does or will require any governmental approval or other
consents or approvals (except such as have been duly obtained, made or
taken and except as expressly contemplated hereby).
SECTION 5.02. ENFORCEABILITY. This Agreement and each other
Termination Document executed or to be executed by it constitutes, or upon
execution and delivery will constitute, its legal, valid and binding
obligation, enforceable against it in accordance with its terms.
Partnership represents and warrants as of the Closing Date
that:
SECTION 5.03. ACCESS TO KEROSENE. 170,304 gallons of the
kerosene conveyed to HSC at Closing are located at an oil terminal operated
by The Newfield Realty Corporation (a.k.a. Mortensen-Vinci Oil Company) in
Hartford, Connecticut. Partnership represents that it has paid the
purchase price for such kerosene in full; that it owns the kerosene free
and clear of any liens or encumbrances of any nature except storage
charges; that there is no written agreement as to storage of such kerosene;
that storage charges have been paid through August 31, 1995; and that
storage charges currently are $0.01 per gallon per month as invoiced based
on the first day of such month and will be adjusted as of the Closing Date.
ARTICLE VI
Covenants of HSC, ENI and Connecticut Natural Gas
-------------------------------------------------
Each of HSC, ENI and Connecticut Natural Gas covenants and
agrees that:
SECTION 6.01. GOVERNMENTAL APPROVALS AND OTHER CONSENTS. It
will use its best efforts, and will cause each of its Affiliates to use its
best efforts, to obtain all governmental approvals and other consents
necessary or appropriate to permit the consummation of the transactions
contemplated by this Agreement and the other Termination Documents.
SECTION 6.02. NONINTERFERENCE. It will not, and will not
permit any of its Affiliates to, interfere with, seek to reopen or
otherwise put in jeopardy the final decision of the Connecticut Department
of Public Utility Control dated June 30, 1995 issued in connection with the
transactions specified in the Termination and Release Agreement, which
order became non-appealable on August 15, 1995.
SECTION 6.03. NO ACTION UNDER RELEVANT DOCUMENTS. (a) Until
the termination of this Agreement, it will neither exercise any remedies
available to it nor take or omit to take, directly or indirectly, any
action under any Relevant Document relating to any defaults or events of
default thereunder existing or alleged to be existing as of the date of
this Agreement or occurring during the term of this Agreement.
(b) In the event that the Closing Date shall not have
occurred, it may, after the termination of this Agreement, exercise any
remedies available to it under any Relevant Document in accordance with the
terms, and relating to any events of default, thereunder (i) existing on or
prior to the date of this Agreement or (ii) occurring during the term of
this Agreement other than those (A) that have been waived and (B) arising
out of acts or omissions occurring as a result of the implementation of
this Agreement.
SECTION 6.04. COOPERATION. It will cooperate with Partnership
with respect to the removals described in Section 7.04, taking into account
title transfers to HSC or ENI contemplated by the Bill of Sale and the
Quitclaim Deeds and the associated impact removal would have on the
Partnership property tax liability, and it will cooperate with ESI of
Tennessee, its subcontractors, agents, successors, and assignees with
respect to the performance of the Removal Contract.
SECTION 6.05. INDEMNIFICATION. (a) It will indemnify and
hold Partnership and its current and future partners harmless from and
against all direct out-of-pocket costs or expenses incurred with respect to
the Removal Contract or Partnership's obligations pursuant to Section 7.04
hereof (including, without limitation, additional expenses and costs
required to complete Partnership's removal and demolition obligations)
arising from any interruption or delay in the demolition and removal
activities caused by strikes, picketing or other union-related activities
by the employees of HSC, ENI or Connecticut Natural Gas.
(b) It will indemnify and hold Partnership and its current and
future partners harmless from and against one-half of all damages (up to a
maximum of $1,000,000) incurred as a result of Partnership's inability to
meet any deadline for the sale of any equipment contained in any Sale
Contract if such failure was caused by strikes, picketing or other
union-related activities by the employees of HSC, ENI or Connecticut
Natural Gas (other than such activities triggered by unsafe conditions
created by Partnership's demobilization contractor or subcontractors);
provided, however, that if such strikes, picketing or other union-related
activity lasts no longer than ten calendar days, neither HSC, ENI nor
Connecticut Natural Gas will have any liability under this Section 6.05(b);
and provided, further, that Partnership will use its reasonable commercial
efforts to mitigate any damages described in this Section 6.05(b).
SECTION 6.06. FILING OF TERMINATION STATEMENTS. HSC covenants
and agrees that, upon Partnership's request, it will prepare, within 24
hours of such request, according to Partnership's instructions, all UCC-3
termination statements or other instruments of release necessary to reflect
the release from the Mortgage of any collateral covered by the Mortgage
that is sold or to be sold by Partnership in accordance with the terms of
the Mortgage. It agrees to execute and file such termination statements or
releases with the appropriate authority or authorities immediately upon
receipt of confirmation from Sumitomo that the sales proceeds have been
deposited into escrow. It further agrees to insure that appropriate
officials will be available at Partnership's reasonable request to perform
its obligations under this Section 6.06.
ARTICLE VII
Covenants of Partnership
------------------------
Partnership covenants and agrees that:
SECTION 7.01. GOVERNMENTAL APPROVALS AND OTHER CONSENTS. It
will use its best efforts, and will cause each of its Affiliates to use its
best efforts, to obtain all governmental approvals and other consents
necessary or appropriate to permit the consummation of the transactions
contemplated by this Agreement and the other Termination Documents.
SECTION 7.02. NO ACTION UNDER RELEVANT DOCUMENTS. (a) Until
the termination of this Agreement, it will neither exercise any remedies
available to it nor take or omit to take, directly or indirectly, any
action under any Relevant Document relating to any defaults or events of
default thereunder existing or alleged to be existing as of the date of
this Agreement or occurring during the term of this Agreement.
(b) In the event that the Closing Date shall not have
occurred, it may, after the termination of this Agreement, exercise any
remedies available to it under any Relevant Document in accordance with the
terms, and relating to any events of default, thereunder (i) existing on or
prior to the date of this Agreement or (ii) occurring during the term of
this Agreement other than those (A) that have been waived and (B) arising
out of acts or omissions occurring as a result of the implementation of
this Agreement.
SECTION 7.03. EXECUTION OF SALE CONTRACT. It will use
reasonable commercial efforts to cause a contract ("Sale Contract") for the
sale of the two LM 2500 Gas Turbines to be executed and delivered prior to
Closing or as soon thereafter as practicable.
SECTION 7.04. REMOVAL OF CERTAIN EQUIPMENT AND RESTORATION OF
PREMISES. (a) Not later than March 31, 1996, Partnership will cause all
equipment, piping, controls and appurtenances not covered by either the
Bill of Sale or the Quitclaim Deeds to be removed and disposed of, except
for any such equipment, piping, controls or appurtenances that HSC and
Partnership shall in good faith and in writing agree need not be removed
and except for improvements to real property. If the Partnership and HSC
fail to mutually agree in good faith that a specific item of equipment,
piping, control or appurtenance need not be removed, Partnership shall
cause such item of equipment, piping, control or appurtenance to be
removed.
(b) Removal work performed by Partnership will be done in
accordance with good engineering practices, including appropriate
restoration work and will be performed in a manner so as not to materially
interfere with the operations of HSC, ENI or Connecticut Natural Gas. Any
remaining equipment, piping, controls or appurtenances will be left in a
safe and unobtrusive condition and will be capped or terminated at existing
valves at HSC's direction. Removal and disposal of the gas fuel supply
equipment and water treatment and boiler treatment chemicals or other
similar chemicals used by Operator will comply with applicable law relating
to hazardous waste.
(c) In order to effect the removal and restoration work
described in this Section 7.04, the Partnership shall enter into an
agreement with ESI, Inc. of Tennessee or other contractor satisfactory to
HSC (hereinafter, "ESI") substantially in the form of Exhibit J hereto (the
"Removal Contract"). HSC will be given a reasonable opportunity to review
the Removal Contract before its execution. The Removal Contract shall
include, without limitation, pre-commencement of work waivers of mechanics
liens by ESI, and requirements that ESI secure performance bonds that
guaranty the completion of the Removal Contract and that provide for the
bonding off within [48] hours of any mechanics liens filed by subcontractor
of ESI on any of the properties of HSC, ENI or Connecticut Natural Gas. No
modifications shall be made to the draft Removal Contract that would
materially impact HSC, ENI or Connecticut Natural Gas without the written
approval of HSC.
(d) Partnership shall no later than the Transfer Date deposit
$3.4 million into an escrow account to be managed by Shawmut Bank, N.A.,
pursuant to an Escrow Agreement substantially in the form of Exhibit K
hereto, to provide for the funding of the Removal Contract. No funds shall
be released from the escrow account to the Partnership until the Removal
Contract has been fully performed.
SECTION 7.05. ACTIONS RELATING TO REMOVAL CONTRACT.
Substantially simultaneously with the execution and delivery of the Removal
Contract and Escrow Agreement, Partnership shall execute and deliver a
conditional assignment agreement substantially in the form attached hereto
as Exhibit I (the "Assignment Agreement").
ARTICLE VIII
Miscellaneous
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SECTION 8.01. GOVERNING LAW. This Agreement shall be governed
by and construed in accordance with the laws of the State of Connecticut.
SECTION 8.02. COUNTERPARTS. This Agreement may be executed in
any number of counterparts, all of which taken together shall constitute
one and the same instrument.
SECTION 8.03. AMENDMENTS. This Agreement may not be amended,
supplemented or otherwise modified, and no provision of this Agreement may
be waived, except by a written instrument signed by each of the parties
hereto.
SECTION 8.04. ASSIGNMENTS. This Agreement shall be binding
upon, and inure to the benefit of, each of the parties hereto and its
successors and assigns, except that no party may assign or transfer any of
its rights or obligations under this Agreement.
SECTION 8.05. SURVIVAL. Notwithstanding any provision of any
Relevant Document to the contrary, none of the representations, warranties,
indemnities or other provisions of any Relevant Document nor the
obligations of any party thereunder shall survive the consummation of the
transactions contemplated by this Agreement.
SECTION 8.06. SURVIVAL AND NONINTEGRATION. The parties hereto
agree that this Agreement, the Bill of Sale from Partnership to HSC, the
Note, the Mortgage and the Assignment Agreement, all of even date herewith,
were executed with the intent that they be and remain effective after and
are not integrated in the Release, and the obligations under each such
document shall be unaffected by such Release.
SECTION 8.07. TERMINATION OF THIS AGREEMENT. This Agreement
shall terminate automatically if the Closing is not effected by September
30, 1995, except that the provisions of Sections 6.03(b) and 7.02(b) shall
survive the termination of this Agreement.
SECTION 8.08. NOTE AND MORTGAGE. Immediately after the Note
has been paid in full or otherwise satisfied or discharged, the terms and
provisions of the Release shall thereafter apply to all rights and
obligations the parties had or may have had under the Note and Mortgage as
if such rights and obligations were expressly mentioned in such Release.
The parties hereto agree to prepare and file with the appropriate
jurisdictions any necessary forms to effect the termination of the
Mortgage.
SECTION 8.09. CONFIDENTIALITY. Each of the parties hereto
agrees not to disclose to any third person and to keep confidential, and to
cause and instruct each of its Affiliates, officers, directors, employees
and representatives not to disclose to any third person and to keep
confidential, any and all information obtained by it relating to
Partnership, any of its Affiliates or the Project; PROVIDED, HOWEVER, that
any information may be disclosed (i) to the extent required by applicable
laws and regulations or by any subpoena or similar legal process so long as
Partnership is given written notice at least three business days prior to
such disclosure or (ii) to the extent Partnership shall have consented in
writing prior to any such disclosure, including, without limitation, with
respect to the submission or disclosure of this Agreement or any of its
terms to any governmental authority in connection with HSC's, ENI's and
Connecticut Natural Gas' obligations hereunder.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first above written.
THE HARTFORD STEAM COMPANY,
Janice I. White by Donald H. Ludington
------------------------- -----------------------------------
Name: Donald H. Ludington
Title: Exec V P
Barbara Sarantonio
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ENERGY NETWORKS, INC.,
Janice I. White by Donald H. Ludington
------------------------- -----------------------------------
Name: Donald H. Ludington
Title: Exec V P
Barbara Sarantonio
-------------------------
CONNECTICUT NATURAL GAS CORPORATION,
Janice I. White by James P. Bolduc
------------------------- -----------------------------------
Name: James P. Bolduc
Title: Senior Vice President -
Financial Services and
CFO
Barbara Sarantonio
-------------------------
HARTFORD COGENERATION LIMITED
PARTNERSHIP,
by: HACOGEN CORPORATION,
its general partner
Janice I. White by A. Ketheech Aran
------------------------- -------------------------------
Name: A. Ketheech Aran
Title: Vice President
Barbara Sarantonio
-------------------------