EXHIBIT 10.1
TERMINATION AGREEMENT
TERMINATION AGREEMENT (this "AGREEMENT"), dated May 17, 2002, by and
among ENRON CORP., an Oregon corporation and debtor in possession ("ENRON"),
ENRON NORTHWEST ASSETS, LLC, a Delaware limited liability company ("ENRON NW
ASSETS"), NORTHWEST NATURAL GAS COMPANY, an Oregon corporation ("NW NATURAL")
and NORTHWEST ENERGY CORPORATION, an Oregon corporation ("NW HOLDCO").
R E C I T A L S:
A. On October 5, 2001, Enron, NW Natural, Enron NW Assets and NW Holdco
entered into that certain Stock Purchase Agreement (the "STOCK PURCHASE
AGREEMENT") that provides for, among other things, the sale of all of the issued
and outstanding common stock of Portland General Electric Company, an Oregon
corporation ("PGE"), to NW Holdco.
B. Section 9.1(a) of the Stock Purchase Agreement provides that the Stock
Purchase Agreement may be terminated at any time prior to closing by the mutual
consent of Enron and NW Natural.
C. On December 2, 2001, Enron and certain of its direct and indirect
subsidiaries filed voluntary petitions (the "BANKRUPTCY CASE") for relief under
chapter 11 of title 11 of the United States Code (the "BANKRUPTCY CODE") with
the United States Bankruptcy Court for the Southern District of New York the
"BANKRUPTCY COURT").
D. The parties have determined that the Stock Purchase Agreement should be
terminated and the parties thereto relieved of their obligations thereunder.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Enron, Enron NW Assets, NW Holdco and NW Natural hereby agree as
follows:
1. Termination. Subject to the satisfaction of the conditions set
forth in Section 2 of this Agreement, the parties agree that the Stock Purchase
Agreement is hereby terminated by mutual consent, pursuant to Section 9.1(a)
thereof.
2. Conditions. Termination of the Stock Purchase Agreement and the
Confidentiality Agreements shall be subject to, and effective upon, the
satisfaction of the following conditions (the "TERMINATION CONDITIONS"):
(a) entry of a final order by the Bankruptcy Court approving Enron's execution
of and performance pursuant to this Termination Agreement and (b) the consent of
Citicorp USA, Inc. and XX Xxxxxx Xxxxx Bank in accordance with that certain
Revolving Credit and Guaranty Agreement, dated as of December 3, 2001, pursuant
to which Enron has obtained debtor-in-possession financing.
3. Motion; Hearing. Enron shall file with the Bankruptcy Court and
serve upon all parties in interest a motion for approval of this Agreement not
later than 3 business days after the date hereof and shall request a hearing on
such motion on the earliest date that is possible under the Case Management
Order that has been entered in the Bankruptcy Case. Enron shall use its
reasonable best efforts to obtain the Bankruptcy Court order described in
Section 2(a) hereof. Enron shall consult with NW Natural in the preparation of
such motion and any related filings concerning such motion to the Bankruptcy
Court. NW Natural shall have the right to review such motion and all related
filings in advance and Enron shall make its representatives available to NW
Natural to discuss questions or issues raised with respect to such motion or
other filings for a reasonable period prior to making such filings.
4. DIP Lender Consent. Enron shall contact, within 3 business days of
the date hereof, its debtor-in-possession lenders and use its reasonable best
efforts to obtain the consent described in Section 2(b) hereof.
5. Drop-Dead Date. This Agreement shall automatically terminate and
shall be of no further force or effect in the event that both Termination
Conditions have not been satisfied on or before July 15, 2002.
6. Cooperation. The parties agree to continue to cooperate with each
other in connection with the development and distribution of all news releases
and other public information disclosures with respect to the status of the Stock
Purchase Agreement and, subject to each party's disclosure obligations imposed
by law or any applicable national securities exchange, (a) shall consult with
each other with respect to any public announcements or statements and (b) shall
not issue any public announcement or statement with respect to the Stock
Purchase Agreement and the transactions contemplated by this Agreement that is
inconsistent with any public announcement or statement previously made by either
party without the consent of the other party. As soon as practicable from and
after the date hereof, the parties hereto shall advise the Oregon Public
Utilities Commission and the Washington Utilities and Transportation Commission
and the Securities and Exchange Commission regarding the execution of this
Agreement and the status of the Stock Purchase Agreement.
7. Release.
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(a) Effective upon the satisfaction of the Termination
Conditions, for good and valuable consideration, NW
Natural and NW Holdco, do hereby waive, release and
forever discharge Enron and Enron NW Assets and their
estates, subsidiaries and affiliated entities
(including all of its offices, branches, parents,
subsidiaries and affiliates) and their present and
former directors, officers, trustees, agents,
attorneys, representatives, employees, successors,
investors, and assigns (the "RELATED PERSONS"), as
well as its current, former and future shareholders
(and their Related Persons) from any and all
liabilities, damages, losses, expenses, actions,
causes of action, covenants, contracts, claims and
demands whatsoever, in law (whether federal, state,
local or otherwise) or in equity, known or unknown,
liquidated or unliquidated, contingent or fixed,
which either NW Natural or NW Holdco ever had, now
has or which hereafter can, shall or may have that
are related in any way to the Stock Purchase
Agreement, actions taken in connection therewith, the
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termination thereof, the negotiations of the parties
with respect to the proposed sale of PGE or actions
taken in connection with the Bankruptcy Case.
(b) Effective upon the satisfaction of the Termination
Conditions, for good and valuable consideration,
Enron and Enron NW Assets do hereby waive, release
and forever discharge NW Natural, NW Holdco and their
subsidiaries and affiliated entities (including all
of their offices, branches, parents, subsidiaries and
affiliates) and their present and former Related
Persons, as well as their current, former and future
shareholders (and their Related Persons), from any
and all liabilities, damages, losses, expenses,
actions, causes of action, covenants, contracts,
claims and demands whatsoever in law (whether
federal, state, local or otherwise) or in equity,
known or unknown, liquidated or unliquidated,
contingent or fixed, which Enron or Enron NW Assets
ever had, now has or which hereafter can, shall or
may have that are related in any way to the Stock
Purchase Agreement, actions taken in connection
therewith, the termination thereof, the negotiations
of the parties with respect to the proposed sale of
PGE or actions taken in connection with the
Bankruptcy Case.
8. Notices. All notices and other communications hereunder to a party
hereto shall be in writing and shall be deemed given upon receipt thereof (a) if
delivered personally, (b) if sent by overnight courier service (receipt
confirmed in writing), upon receipt thereof or (c) if delivered by facsimile
transmission (with receipt confirmed) between the hours of 9:00 a.m. and 5:00
p.m. in the recipient party's time zone, in each case to such party at the
following address (or at such other address for a party as shall be specified by
like notice):
(i) If to NW Natural or NW Holdco, to:
Northwest Natural Gas Company
000 X.X. Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxx 00000
Attention: Xxxx X. Xxxxxx
President and Chief
Operating Officer
Fax: (000) 000-0000
with a copy to:
Xxxxxx Xxxx & Priest LLP
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxx X. Xxxxx, Esq.
Fax: (000) 000-0000
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(ii) If to Enron or Enron NW Assets, to:
Enron Corp.
0000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxx Xxxxx
Executive Vice President and
General Counsel
Fax: (000) 000-0000
with copies to:
Corporate Secretary
Enron Corp.
0000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
Fax: (000) 000-0000
and
Xxxx Xxxxxxx & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxx, Esq.
Fax: (000) 000-0000
9. Miscellaneous. This Agreement: (a) constitutes the entire agreement
and supersedes all other prior agreements and understandings, both written and
oral, among the parties, or any of them, with respect to the subject matter
hereof; (b) shall not be assigned by operation of law or otherwise by any party
without the prior written consent of the other party; and (c) may be modified,
amended or supplemented in any manner and at any time only by a written
instrument executed by each of the parties. This Agreement may be executed in
one or more counterparts, each of which shall be deemed to be an original, but
all of which shall constitute one and the same agreement. This Agreement shall
be governed by, and construed in accordance with, the laws of the State of New
York, other than any conflict of laws rules thereof that would direct the
application of the laws of another jurisdiction to this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above written.
ENRON CORP., AS DEBTOR IN POSSESSION
By: _______________________________
Name: _________________________
Title: ________________________
ENRON NORTHWEST ASSETS, LLC
By: Enron Finance Management, LLC, its
Class A and Managing Member
By: Enron Corp, its sole member
By: _______________________________
Name: _________________________
Title: ________________________
NORTHWEST NATURAL GAS COMPANY
By: _______________________________
Xxxxxxx X. Xxxxxx
Chairman and Chief Executive Officer
NORTHWEST ENERGY CORPORATION
By: _______________________________
Xxxxxxx X. Xxxxxx
Chairman and Chief Executive Officer
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