EX-99
3
terminationagreement.htm
TERMINATION AGREEMENT
Exhibit
99
TERMINATION AGREEMENT
This
Termination Agreement (this “Agreement”), dated
as of June 24, 2003, is by and between PG&E Energy
Trading-Power, L.P., a Delaware limited partnership
(“PGET”), PG&E Gas Transmission, Northwest
Corporation, a California corporation (the
“Guarantor”), and DTE Georgetown, LLC, a Delaware
limited liability company (“DTE”).
RECITALS
WHEREAS,
each of PGET and DTE is party to that certain Tolling Agreement
dated as of May 23, 2000 (as the same may have been amended,
supplemented or modified and together with all exhibits and
schedules thereto, the “Subject Contract”).
WHEREAS,
PG&E Corporation, a California corporation (the
“Assignor”), entered into a Guarantee dated as of
May 24, 2000 (the “Guarantee”) in favor of DTE
pursuant to which, among other things, the Assignor unconditionally
guaranteed to DTE the prompt payment when due of all amounts
payable under the Subject Contract.
WHEREAS,
pursuant to an Assignment and Assumption Agreement dated as of
January 19, 2001 between the Assignor and the Guarantor, the
Guarantor, among other things, assumed the due and punctual
performance, discharge and observation of all of the
Assignor’s obligations in, related to, or arising out of the
Guarantee, and the Assignor, among other things, assigned,
transferred and conveyed to the Guarantor all of the
Assignor’s right, title and interest in, related to, or
arising out of the Guarantee.
WHEREAS,
DTE and PGET wish to terminate and extinguish all of their
respective obligations and liabilities under and in respect of the
Subject Contract from and after the date of this Agreement, and are
agreeable to releasing each other from all such obligations and
liabilities in accordance with the terms and conditions of this
Agreement, subject to the limitations set forth in this
Agreement.
WHEREAS,
the Guarantor wishes to terminate and extinguish certain of its
obligations and liabilities under and in respect of the Guarantee,
and DTE is agreeable to such termination and to releasing the
Guarantor from certain obligations and liabilities in accordance
with the terms and conditions of this Agreement, subject to the
limitations set forth in this Agreement and to the amendments to
the Guarantee set forth herein.
NOW
THEREFORE, based on the premises and covenants contained herein,
the parties hereto hereby agree as follows:
AGREEMENT
1.
Payment.
In consideration of the termination and release set forth in
Section 2 of the Agreement, PGET shall pay DTE the sum of
Thirty Million One Hundred Fifty Thousand Four Hundred Dollars
($30,150,400) (the “Termination Payment”) concurrently
with the execution and delivery of this Agreement. In
addition, PGET shall pay to DTE the sum of Five Hundred Sixty Six
Thousand Four Hundred Dollars ($566,400) representing payments due
and owing under the Subject Contract for services rendered through
the date of this Agreement (the “Ordinary Course
Payments”).
2.
Termination
of Subject Contract; Termination of Surety Bond; and
Release. Subject to Section 4, PGET and DTE hereby (a)
terminate and extinguish all of the obligations and liabilities of
each party under and in respect of the Subject Contract from and
after the date of this Agreement; (b) confirm and agree that from
and after the date hereof, PGET shall have no further right to
request payments under (and shall not request any payment under)
that certain Surety Bond No. 103461713 issued by Travelers Casualty
and Surety Company of America in the amount of $6,000,000 and
delivered to PGET pursuant to the terms of the Subject Contract
(the "Surety Bond"); and (c) on behalf of itself and each of its
equity holders, officers, directors, managers, Affiliates (as
defined in the Subject Contract), divisions, subsidiaries,
employees, agents, heirs, successors and assigns ("Related
Parties"), for good and sufficient consideration, including this
Agreement, the sufficiency of which is hereby acknowledged,
releases and forever discharges the other party and their
respective Related Parties from all claims, demands, actions,
causes of action and suits, in law or equity, whether known or
unknown and whether now existing or hereafter arising, for, upon,
or by reason of any matter, cause or thing whatsoever arising out
of or relating to the Subject Contract and the terms and conditions
thereof and each of PGET and DTE hereby agrees and acknowledges
that the other party and their respective Related Parties shall
have no further obligations or liabilities under the Subject
Contract.
3.
Termination
of Guarantee and Release. Subject to Section 4, (a)
the Guarantor and DTE hereby terminate and extinguish all of the
obligations and liabilities of each party under and in respect of
the Guarantee and (b) DTE on behalf of itself and its Related
Parties, for good and sufficient consideration, including this
Agreement, the sufficiency of which is hereby acknowledged, hereby
releases and forever discharges the Guarantor and its Related
Parties from all claims, demands, actions, causes of action and
suits, in law or equity, whether known or unknown and whether now
existing or hereafter arising, for, upon, or by reason of any
matter, cause or thing whatsoever arising out of or relating to the
Guarantee and the terms and conditions thereof and each of DTE and
the Guarantor hereby agrees and acknowledges that the Guarantor and
its Related Parties shall have no further obligations or
liabilities under the Guarantee.
4.
Avoidance
Action. Notwithstanding Sections 2 and 3 above, in the
event that prior to the End Date (as defined below), a suit or
other cause of action is brought against or threatened against DTE
by or on behalf of PGET, the Guarantor, their respective estates or
their respective successors or assigns (an “Avoidance
Action”) seeking to recover from DTE all or any portion of
the Termination Payment, the Ordinary Course Payments or any amount
previously paid to DTE under the Subject Contract and DTE either
pays any amount in settlement of or for a release from any
Avoidance Action, or any amount previously paid by PGET to DTE
hereunder or under the Subject Contract is rescinded or must
otherwise be returned for any reason whatsoever, then the Guarantor
and PGET shall be liable under the Guarantee and this Agreement,
respectively, with respect to all or any portion of the amount so
recovered from, or paid by, DTE as a result thereof. As used
herein, “End Date” shall mean the date which is the
earlier of (x) six (6) years and one day after DTE’s receipt
of the Termination Payment, and (y) the date of the consummation of
a plan of reorganization with respect to PGET that does not provide
for the survival of any claims or causes of actions against DTE
with respect to the Termination Payment or the Ordinary Course
Payments.
5.
Amendment
of Guaranty. In consideration of the terminations and
releases set forth in Sections 2 and 3, the Guarantee is
hereby amended such that the term “Obligations” as
defined in Section 1 of the Guarantee shall mean all amounts
payable under Section 4 of this Agreement.
6.
Further
Assurances. From time to time after the date hereof, each
of the parties hereto shall execute and deliver all such additional
assignments, instruments, notices, releases, and other documents,
and shall take such other action, all in accordance with applicable
law, as may be reasonably requested by any of the other parties
hereto in order to consummate more effectively the transactions
contemplated to occur hereunder. Without limiting the
generality of the foregoing, on the date hereof, PGET shall deliver
to DTE the original Surety Bond together with a duly executed copy
of the Notice of Surety Bond Surrender and Request for Cancellation
attached to this Agreement as Annex A, and hereby authorizes DTE to
deliver the Surety Bond to the issuer thereof for
cancellation.
7.
Governing
Law; Choice of Forum. THIS AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE INTERNAL LAWS OF
THE STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICTS OF LAW
PRINCIPLES THEREOF (OTHER THAN SECTION 5-1401 OF THE NEW YORK
GENERAL OBLIGATIONS LAW). THE PARTIES HEREBY IRREVOCABLY
SUBMIT TO THE JURISDICTION OF ANY STATE COURT IN NEW YORK WITH
RESPECT TO ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR THE GUARANTEE. THE PARTIES HEREBY
IRREVOCABLY AGREE THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR
PROCEEDING SHALL BE HEARD AND DETERMINED IN XXX XXXXXX XX XXX XXXXX
XX XXX XXXX IN THE COUNTY OF NEW YORK.
8.
Jury
Trial Waiver. TO THE EXTENT PERMITTED BY APPLICABLE
LAW, EACH OF THE PARTIES IRREVOCABLY WAIVES ALL RIGHT OF TRIAL BY
JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT, THE GUARANTEE, OR ANY MATTER
ARISING HEREUNDER OR THEREUNDER.
9.
Counterparts.
This Agreement may be executed and delivered (including by
facsimile transmission) in one or more counterparts, all of which
shall be considered one and the same agreement and shall become
effective when one or more counterparts have been signed by each of
the parties and delivered to the other parties, it being understood
that all parties need not sign the same counterpart.
10.
Entire
Agreement. This Agreement constitutes the entire
agreement of the parties hereto and supersedes all prior
agreements, letters of intent and understandings, both written and
oral, among the parties with respect to the subject matter
hereof.
11
Amendment. This Agreement may be amended from time to
time only by the written agreement of the parties hereto. This
Agreement may not be changed orally.
(signature page follows)
IN
WITNESS WHEREOF, this Agreement has been duly executed by the
parties hereto as of the date first above written.
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PG&E ENERGY
TRADING-POWER, L.P.
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By:
/s/ X. X.
Xxxxxx
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Name:
X. X.
Xxxxxx
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Title: Vice
President
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PG&E GAS TRANSMISSION,
NORTHWEST CORPORATION
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By:
/s/ Xxxxxx X.
Xxxxxx
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Name:
Xxxxxx X.
Xxxxxx
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Title:
Vice President,
Pipeline
OPS
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DTE GEORGETOWN,
LLC
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By:
/s/ Xxxxx X.
Xxxxxxxxx
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Name:
Xxxxx X.
Xxxxxxxxx
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Title:
President
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ANNEX A
NOTICE OF SURETY BOND
SURRENDER AND REQUEST FOR CANCELLATION
June __,
2003
TO: Travelers
Casualty and Surety Company of America ("Issuer")
Re: Surety Bond No.
103461713 (the "Bond")
Each
of the undersigned, duly authorized officers of PG&E Energy
Trading-Power, L.P. (the "Obligee") and DTE Georgetown, LLC
("DTE"), hereby certifies to Issuer that that certain Tolling
Agreement dated as of May 23, 2000 (as the same may have been
amended, supplemented or modified from time to time, the
"Agreement") has been terminated in its entirety and that, as of
the date hereof, the Obligee no longer has any right to request
that payments be made under the Bond issued pursuant to the terms
of the Agreement.
DTE
and the Obligee further certify that the original Bond is attached
hereto and is being delivered to the Issuer for cancellation as of
the date hereof. Written confirmation of such cancellation
should be made to DTE at the following address: DTE
Georgetown, LLC, 000 X. Xxxx Xxxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxxxx
00000, Attention: Xxxxxx X. Xxxxxx, Facsimile No.
000-000-0000, Confirmation No. 734-302-4800.
Should
you have any further questions please contact Xxxxxx X. Xxxxxx at
DTE Energy Services at 000-000-0000.
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PG&E ENERGY
TRADING-POWER, L.P.
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By:
/s/ X. X.
Xxxxxx
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Name:
X. X.
Xxxxxx
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Title:
Vice
President
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DTE GEORGETOWN,
LLC
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By:
/s/ Xxxxx X.
Xxxxxxxxx
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Name:
Xxxxx X.
Xxxxxxxxx
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Title:
President
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