EXHIBIT 99.5
TERMINATION OF AGREEMENT AND MUTUAL RELEASE
DATE: The date of this Agreement is October 1, 2002.
PARTIES: Aquila Merchant Services, Inc.
000 Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Fax No: (000) 000.0000
("Aquila")
Xxxxxx Resources Corporation
000 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Fax No. (000) 000-0000
("Xxxxxx")
RECITALS:
A. Aquila, as successor in interest to Aquila Risk Management Corporation,
and Xxxxxx are parties to that certain ISDA Master Agreement dated September 9,
1999 (the "Swap Agreement").
X. Xxxxxx and Xxxxxx are not parties to any current underlying transactions
to the Swap Agreement, and now desire to terminate the Swap Agreement pursuant
to the terms and conditions stated herein.
AGREEMENT:
In consideration of the mutual covenants herein contained, and for
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties agree as follows:
1. Termination of Swap Agreement. Notwithstanding any provision in the Swap
Agreement to the contrary, the Swap Agreement is hereby cancelled and terminated
by the parties, and neither party shall have any right or obligation with
respect to the Swap Agreement except as provided herein.
2. Release of Obligations. Effective from and after the execution of this
Agreement, and excepting only such claims, demands, and causes of action which
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Aquila or Xxxxxx may assert against one another for purposes of enforcing this
Agreement, or for purposes of claiming a breach of this Agreement, Aquila and
Xxxxxx, for themselves, their successors and assigns, do hereby release and
forever discharge each other and the successors and assigns of each other from
all liability, known or unknown, contingent or direct, liquidated or
unliquidated, for any claims, demands, actions, or suits of any kind which they
have had, now have, or may in the future have, against one another arising out
of or pursuant to the Swap Agreement. Each party acknowledges the possibility
that the other party may have unknown claims against such party, and that by
signing this Agreement, each party expressly waives such claims, if any. The
parties further acknowledge that the consideration for this mutual release takes
into account the possibility of such future claims.
3. Representations and Warranties. Each party hereto represents and
warrants the following to the other party:
A. Authority; Execution. The party has all requisite power and
authority to execute this Agreement and consummate the transactions
contemplated hereby. The execution, delivery, and performance of this
Agreement and the consummation of the transactions contemplated hereby on
the part of the party have been duly and validly authorized by all
necessary action on the part of such party.
B. No Conflict. The execution, delivery and performance by the party
of this Agreement does not and will not conflict with or violate any
provision of its respective Articles of Incorporation, bylaws or other
organizational documents or any other material agreement, contract or
instrument to which it is a party.
4. General Covenants.
A. Voluntary Agreement. The parties have read this Agreement and the
mutual release contained herein, and have freely and voluntarily entered
into this Agreement. Each party is fully aware of the contents of this
Agreement and its legal effects. Each party confirms that it has executed
this Agreement free from duress, undue influence, or promise not set forth
in this Agreement.
B. Further Assurances. Each party shall take such actions and execute
such further documents as may be reasonably requested by the other party to
effectuate the purposes of this Agreement, provided, that Aquila shall not
be required to incur any expense in connection therewith.
C. Entire Agreement; Amendments. This Agreement represents the entire
agreement of the parties hereto and supersedes all prior agreements or
understandings with respect to the foregoing matters. This Agreement may be
amended only pursuant to a written document executed by both parties
hereto.
D. Counterparts/Facsimile Signatures. This Agreement may be executed
in counterparts, all of which together shall be deemed an original
Agreement. Delivery of an executed signature page of this Agreement by
facsimile transmission shall constitute effective and binding execution and
delivery of this Agreement.
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E. Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the state of Texas without giving
effect to its conflict of laws decisions.
F. Individual Authorization. The individuals executing this Agreement
represent and warrant that they have been authorized to execute this
Agreement by the parties on whose behalf they are executing the Agreement,
and shall be personally liable to the other parties for any breach of this
representation and warranty.
G. Effective Date. Notwithstanding anything else herein to the
contrary, this Agreement shall not become effective unless and until that
certain cash consideration required to be paid by Black Hills Corporation
to Aquila Energy Capital Corporation ("AECC") pursuant to that certain
Assignment of Credit Agreement, Note, Liens, and Security Documents dated
October 1, 2002, among such parties and others has been received by AECC.
[signature page is attached]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
Aquila Merchant Services, Inc. Xxxxxx Resources Corporation
By: By:
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Name: Name:
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Title: Title:
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