Exhibit 10.3.42
AMENDMENT NO. 1 TO AGREEMENT ADDRESSING RENEWABLE
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ENERGY PRICING AND PAYMENT ISSUES
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between
HEBER GEOTHERMAL COMPANY
QFID No.3001
and
SOUTHERN CALIFORNIA EDISON COMPANY
1. PARTIES.
The Parties to this Amendment No. 1 ("Amendment") to the Agreement
Addressing Renewable Energy Pricing and Payment Issues ("Agreement") are
Heber Geothermal Company ("SELLER"), a California partnership, and Southern
California Edison Company ("EDISON"), a California corporation. EDISON and
SELLER are hereinafter sometimes referred to individually as a "Party" and
jointly as the "Parties."
2. RECITALS.
This Amendment to the Agreement is entered into between the Parties with
reference to the following facts:
2.1 On August 26, 1983, SELLER'S predecessor and EDISON executed a power
purchase agreement (the "Contract"), which establishes, among other things,
the terms and conditions pursuant to which EDISON purchases electric power
from SELLER and SELLER sells electric power to EDISON.
2.2 On or about August 26, 1983, EDISON consented to an assignment of the
Contract from SELLER'S predecessor to SELLER and such assignment was made.
2.3 On or about June 19, 2001, EDISON and SELLER entered into the Agreement.
2.4 On or about October 2, 2001, EDISON and the California Public Utilities
Commission ("Commission") entered into a settlement agreement (the "Rate
Doctrine Settlement Agreement") pursuant to which EDISON and the Commission
agreed to settle certain litigation pending in the United States District
Court for the Central District of California, entitled "Southern California
Edison Company v. Xxxxxxx X. Xxxxx et al.," USDC Case No. 00-12056-RSWL
(Mcx) (the "Federal Litigation").
2.5 On or about October 5, 2001, the Court in the Federal Litigation approved
the Rate Doctrine Settlement Agreement and entered judgment for EDISON
against the Commission (the "Judgement") in accordance with the terms of
the Rate Doctrine Settlement Agreement.
2.6 The Parties desire to amend the Agreement in order to account for the
foregoing developments and circumstances.
3. AGREEMENT
In consideration of promises, mutual covenants and agreements hereinafter
set forth, and for other good and valuable consideration, as set forth
herein, the Parties agree to amend the Agreement as follows:
3.1 In Section 3.2.1 of the Agreement, replace "Section 3.2.5" with "Section
3.2.4."
3.2 Section 3.2.3 of the Agreement is hereby replaced, in its entirety, with
the following revised Section 3.2.3:
"3.2.3 PARTIAL PAYMENTS OF THE STIPULATED AMOUNT.
"3.2.3.1 On the Initial Interest Payment Date, EDISON shall also pay to
SELLER ten percent (10%) of the Stipulated Amount (the "Initial Partial
Payment").
"3.2.3.2 Except as provided in Section 3.2.3.3, EDISON shall not be
required to make any partial payments of the Stipulated Amount other than
the Initial Partial Payment; provided, however, that nothing herein shall
preclude EDISON from, at any time, electing to make partial payments of the
Stipulated Amount that are in addition to those required under Section
3.2.3.1, and those, if any, made pursuant to Section 3.2.3.3.
"3.2.3.3 During the Partial Payment Period, as defined below, EDISON shall
make a further partial payment or payments, as applicable, of the
Stipulated Amount to SELLER if (i) Commission Approval, as defined in
Section 4.1.1 of Amendment No. 1 to this Agreement (hereinafter, the
"Amendment") has been either obtained or waived by EDISON, and (ii) EDISON
makes a payment of Specified Indebtedness (as defined in Schedule I to the
Amendment) that, together with all other payments, if any, of Specified
Indebtedness during the Partial Payment Period, exceeds $100 million (the
"Partial Payment Threshold"). EDISON shall make any partial payment of the
Stipulated Amount required to be made to SELLER under this Section 3.2.3.3
within five (5) business days after the later of (a) if Commission Approval
of the Amendment has already been obtained or waived, the date on which any
payment of Specified Indebtedness is made that causes the Partial Payment
Threshold to be exceeded or (b) if a payment of Specified Indebtedness that
has caused the Partial Payment Threshold to be exceeded has previously
occurred, the date on which Commission Approval of the Amendment has been
obtained or waived by EDISON. The amount of any payment required to be made
to SELLER as specified above in this Section 3.2.3.3 shall be calculated by
(x) dividing the aggregate amount of the payments of Specified Indebtedness
made by EDISON from the commencement of the Partial Payment Period through
the date on which such aggregate payments of Specified Indebtedness have
caused the Partial Payment Threshold to be exceeded by the total amount of
the Specified Indebtedness shown on Schedule I to Amendment No.1 to this
Agreement, and (y) multiplying the Stipulated Amount applicable to SELLER
by the ratio derived by the calculation in (x) above.
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Thereafter, should EDISON continue to make a payments of Specified
Indebtedness through the balance of the Partial Payment Period, EDISON
shall be required to make corresponding, additional partial payments of the
Stipulated Amount to SELLER as provided for this Section 3.2.3.3 except
that in calculating the required amount of such additional partial
payments, if any, and in determining the due date for payment of such
additional partial payments, EDISON shall not be required to take into
account any prior payments of Specified Indebtedness that were previously
taken into account in calculating any previous partial payment to SELLER
under this Section 3.2.3.3. Accordingly, for the purpose of determining the
amount of any additional partial payment determined to be due SELLER under
this Section 3.2.3.3, the ratio defined in (x) above shall be calculated by
dividing the aggregate payments of Specified Indebtedness that were made
subsequent to the payments that were used in calculating all previous
partial payments to SELLER under this Section 3.2.3.3 and which have again
caused the Partial Payment Threshold to be exceeded by the total amount of
Specified Indebtedness shown on Schedule I. The "Partial Payment Period" is
the period commencing on December 1, 2001 and ending on the earlier of (A)
the Final Payment Date, as defined in Section 3.2.4 of this Agreement, or
(B) September 30, 2002. In no event shall the payments made to SELLER
pursuant to this Section 3.2.3.3 and Section 3.2.4 of this Agreement, taken
together, exceed 100% of the Stipulated Amount.
"3.2.3.4 After the date hereof, EDISON shall not make any partial payments
to one "class of qualifying facility," as defined below, without making an
equivalent (by percentage of the Stipulated Amount) partial payment to each
member of the other "class of qualifying facility" that is a party to an
agreement and amendment with EDISON that is similar to the Agreement and
the Amendment. For the purpose of implementing this Section 3.2.3.4, the
following shall constitute a "class of qualifying facility": (i) the class
of qualifying facilities under contract with EDISON that use natural gas as
their primary fuel source; (ii) the class of qualifying facilities under
contract with EDISON that do not use natural gas as their primary fuel
source."
3.3 Section 3.2.4 of the Agreement is hereby replaced in its entirety, with the
following revised Section 3.2.4:
"3.2.4 FINAL PAYMENT.
"The Final Payment Amount, as defined below, shall become due and payable
by EDISON to SELLER on the Final Payment Date; provided, however, that
EDISON shall be permitted a grace period of five (5) business days
following the Final Payment Date to calculate the Final Payment Amount,
process the Final Payment, and wire-transfer the Final Payment to SELLER.
The "Final Payment Amount" is the amount, calculated on the Final Payment
Date, as defined herein, that is equal to (i) the Stipulated Amount; (ii)
plus all accrued but unpaid Interest (if any) pursuant to Section 3.2.2
calculated through and including the date on which the Final Payment Amount
is actually wire-transferred to SELLER; (iii) less all partial payments of
the Stipulated Amount made by EDISON to SELLER pursuant to Section 3.2.3.1,
Section 3.2.3.3 or otherwise. The "Final Payment
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Date" means the earliest of (a) the date on which EDISON makes one or more
payments of the Specified Indebtedness during the Partial Payment Period,
as defined in Section 3.2.3.3, which together with all previous payments of
Specified Indebtedness during the Partial Payment Period, causes the total
amount of Specified Indebtedness paid during the Partial Payment Period to
equal or exceed $3 billion; (b) the date on which EDISON makes payments
and/or restructures the obligations (other than the $1.65 billion of bank
indebtedness) constituting the Specified Indebtedness such that Edison is
no longer in arrears or in a condition of default with respect to 80% or
more of the obligations (other than the $1.65 billion of bank indebtedness)
constituting the Specified Indebtedness; or (c) the date on which EDISON
first obtains funds in an aggregate amount of $600 million or greater from
any financing after the commencement of the Partial Payment Period, as
defined in Section 3.2.3.3. Notwithstanding the foregoing, nothing in this
Section 3.2.4 shall be construed to require EDISON to make the Final
Payment before Commission Approval, as defined in Section 4.1.1 of the
Amendment, has been either obtained or waived by EDISON."
3.4 Section 3.2.5 of the Agreement is hereby deleted in its entirety.
3.5 The definition of "Standstill Period" contained in Section 3.3.1 of the
Agreement is hereby deleted in its entirety, and replaced with the
following revised definition:
"3.3.1 STANDSTILL.
""Standstill Period," as used herein, means the period commencing with the
date on which both the Initial Interest Payment and Initial Partial Payment
have been made and ending on the earliest of the following dates: (i)
default by EDISON under any of the payment provisions contemplated by this
Agreement (as amended by the Amendment) or the Contract with respect to
payments for energy and capacity delivered after March 26, 2001 under the
Contract; (ii) the fifth business day after Final Payment Date if EDISON
pays the Final Payment Amount; (iii) the date on which EDISON files a
petition for protection under the bankruptcy laws or an involuntary
petition for relief in bankruptcy is filed against EDISON and an order for
relief is entered with respect to such petition; (iv) September 30, 2002 at
11:59 p.m. Notwithstanding the foregoing, nothing in this Section 3.3.1
shall prohibit EDISON from pursuing or participating in judicial and/or
regulatory proceedings pertaining to any other qualifying facility that has
not executed this form of Agreement or another form of agreement providing
for forbearance of claims against EDISON."
3.6 Section 3.4.1 of the Agreement is hereby replaced, in its entirety, with
the following revised Section 3.4.1:
"3.4.1 INTERIM ENERGY PRICE.
"Unless otherwise established in the Contract, for the period (herein, the
"Interim Period") commencing with the date on which this Agreement has been
executed by the Parties and ending on the last minute of April 30, 2002,
the SRAC upon which SELLER's energy payment is calculated shall be
determined in accordance
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with the SRAC formula approved by the Commission in D.00-00-000, as
modified by D.00-00-000 (hereafter referred to as the "Monthly SRAC"),
which formula, for purposes of this Agreement, shall not be subject to
further change by the Commission, by any other regulatory authority, or by
any court with jurisdiction in the matter; provided, however, that, in lieu
of payments calculated pursuant to the SRAC formula described in the
preceding sentence, SELLER may, for energy deliveries commencing on the
first day of the next calendar month following the date that Amendment No.
1 to this Agreement has been executed by the Parties, but no earlier than
December 1, 2001, and for the balance of the Interim Period, elect to
receive an alternative fixed price of $0.0325 per kWh (the "Alternative
Interim Energy Price") for energy delivered by SELLER to EDISON. The
Alternative Interim Energy Price shall be weight-adjusted by the
Time-of-Delivery ("XXX") factors set forth in EDISON'S Time-of-Use rate
schedule "TOU-8." SELLER hereby elects to be paid according to the
following method during the balance of the Interim Period in accordance
with this section 3.4.1:
[_] Alternative Interim Energy Price
[X] Monthly SRAC
(check one of the above).
"If SELLER elects to receive the Alternative Interim Energy Price, and
Amendment No. 1 to this Agreement is terminated pursuant to Section 4.13 of
such Amendment as a result of Commission Approval not having been timely
obtained or waived, then SELLER shall not be paid for energy deliveries at
the Alternative Interim Energy Price established above and shall instead be
paid for energy deliveries during the Interim Period in accordance with the
Monthly SRAC. If such termination occurs, the net difference in payments
made by EDISON to SELLER calculated, on a monthly basis, by subtracting the
payments that were made by EDISON for the month in question based on the
Alternative Interim Energy Price from the payments that SELLER would have
received during the same month if such payments had been based on Monthly
SRAC, plus interest (calculated in the manner described below in this
section), shall, if such net monthly net difference is positive, be added
to the first payment due SELLER following termination of Amendment No. 1 to
this Agreement, and if such monthly net difference is negative, deducted
from such payment (and from any subsequent payments as may be necessary to
fully recoup any excess payments made at the Alternative Interim Energy
Price rate). Interest on the net difference shall be calculated at the
Federal Reserve Board three-month prime commercial paper rate as to each
monthly payment made based on the Alternative Interim Energy Price
commencing on the day on which such payment was mailed and ending on the
date on which any statement reflecting the adjustment described in the
preceding sentence is mailed."
3.7 Sections 3.4.2 and 3.4.3 of the Agreement are hereby replaced, in their
entirety, with the following revised Sections 3.4.2 and 3.4.3:
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"3.4.2 FIXED ENERGY PRICE.
"Notwithstanding any provision of the Contract to the Contrary, commencing
on the first minute of May 1, 2002, and for a period of five (5) years
thereafter (such five-year period being referred to herein as the "Fixed
Rate Period"), SELLER hereby elects that the SRAC for energy delivered to
EDISON by SELLER, if SELLER's Contract provides for payment for energy
based on SRAC, shall be a "fixed" price of 5.37 cents/kWh (the "Fixed
Rate"), in lieu of the Commission-Approved SRAC Methodology; provided,
however, that if the Contract terminates in accordance with its own terms,
or for any other lawful reason, prior to the end of the Fixed Rate Period,
then the Fixed Rate Period shall likewise terminate; and provided further,
however, that if the Contract concerns a solar thermal facility that
augments its energy input with fossil fuel, and such SELLER's Contract
provides for payment for energy based on SRAC, EDISON shall pay for 75% of
the energy delivered to EDISON by such SELLER during the Fixed Rate Period
at the Fixed Rate and 25% of the energy delivered to EDISON by such SELLER
at the rate described in Exhibit 3.4.2 to this Agreement. During the Fixed
Rate Period, the Fixed Rate shall be weight-adjusted by Time-of-Delivery
("XXX") factors set forth in EDISON's Time-of-Use rate schedule "TOU-8." In
the event that SELLER's Contract is still in the forecast energy payment
period as of the Effective Date of this Agreement and provided that such
forecast energy payment period expires no later than March 1, 2002, the
rate for energy delivered by SELLER to EDISON shall be (i) the applicable
forecast rate provided in the Contract through the conclusion of the
forecast energy payment period; (ii) from the conclusion of the forecast
energy payment period through the last minute of April 30, 2002, Monthly
SRAC, or, if elected by SELLER at the time it executes this Amendment, the
Alternative Interim Energy Price; and (iii) during the Fixed Rate Period,
the Fixed Rate. Any SELLER not paid the Fixed Rate in the place of SRAC
under one of the circumstances described in this Section 3.4.2 shall be
paid for its energy deliveries in accordance with the then-current
Commission-approved SRAC and, if SELLER's Contract provides for a rate
other than the Commission-approved SRAC, then at such other rate as
specified in SELLER's Contract.
"3.4.3 On the first day after the last day of the Fixed Rate Period, the
SRAC price payable to SELLER if it has received the Fixed Rate as provided
above shall, for the remaining term of the Contract; be established in
accordance with the Commission-approved SRAC methodology then in effect and
as may thereafter be updated by the Commission from time to time,
including, but not limited to, the XXX factors and energy loss adjustment
factor."
3.8 Section 3.5 of the Agreement is hereby replaced, in its entirety, with the
following revised Section 3.5:
"3.5 ENERGY LOSS ADJUSTMENT FACTORS.
"Unless otherwise specifically provided in the Contract, during the
Fixed Rate Period, the energy loss adjustment factor ("ELAF") applicable to
energy
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deliveries to EDISON from SELLER will be 1.0. During the Interim Period,
the ELAF applicable to energy deliveries from SELLER to EDISON for which
EDISON pays SELLER Monthly SRAC shall be determined in accordance with the
methodology approved by the Commission in D.00-00-000, and, for purposes
of this Agreement, shall not be subject to further change by the
Commission, by any other regulatory authority, or by any court with
jurisdiction in the matter during the Interim Period; provided, however,
that if SELLER elects to be paid the Alternative Interim Energy Price
pursuant to Section 3.4.1, then the ELAF applicable to energy deliveries
made by SELLER to EDISON and paid for at such Alternative Interim Energy
Price shall be 1.0."
3.9 Section 3.6 of the Agreement is hereby replaced, in its entirety, with the
following revised Section 3.6:
"3.6 MUTUAL RELEASES; DISMISSAL OF LITIGATION.
"Effective upon and subject to EDISON paying the Final Payment Amount to
SELLER:
"(a) The Parties release and discharge each other and their respective
affiliates, parents, officers, directors, employees, agents, insurers,
attorneys and assigns from any and all claims, debts, liens, causes of
action or damages of any kind whatsoever existing at any time on or before
the date on which this Agreement has been executed by the Parties (or, in
the case of claims, debts, etc., arising from EDISON's suspension of
payments for energy and capacity delivered by SELLER during the period
November 1, 2000 through March 26, 2001, existing at any time on or before
the Final Payment Date), whether in law or in equity, whether known or
unknown, arising from or related to either Party's performance or
non-performance under the Contract; provided, however, that, except with
respect to claims arising from or related to EDISON's suspension of
payments as referenced above, nothing herein shall be deemed to release or
waive any claim arising from or related to either Party's performance or
non-performance under the Contract from and after the day following the
date on which this Agreement has been executed by the Parties regardless of
whether such performance or non-performance, insofar as it also existed
before the date on which this Agreement has been executed by the Parties,
is released pursuant to this Section 3.6 for such prior period.
Notwithstanding the foregoing, nothing contained in this Agreement shall
release any person or entity other than SELLER itself from any claims,
causes of action, or rights EDISON may now have, or may obtain in the
future, for illegal or otherwise actionable conduct that resulted in
increases in the prices EDISON paid or was required to pay for electricity,
natural gas, or both.
"(b) As to claims that are released pursuant to this Section 3.6,
SELLER and EDISON waive the application of California Civil Code Section
1542, which provides: "A general release does not extend to claims which
the creditor does not know or suspect to exist in his favor at the time of
executing the release, which if known by him must have materially affected
the settlement with the debtor."
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"(c) The Parties shall promptly cause to be dismissed with prejudice
all claims in the Litigation [if applicable] that would be barred by the
foregoing mutual release."
3.10 Section 4.13 of the Agreement is hereby replaced, in its entirety, with the
following revised Section 4.13:
"4.13 TERMINATION.
"Except as provided herein, this Agreement shall terminate automatically on
September 30, 2002 at 11:59 p.m. if the Final Payment Amount, as defined in
Section 3.2.4, has not yet been paid to SELLER. Notwithstanding the
foregoing, the second sentence of Section 3.2.1 and the entirety of
Sections 3.3.2, 3.3.3, 3.4.1, 3.4.2, 3.4.3, 3.5, 4.11 and 4.13 shall
survive any termination of this Agreement (assuming that all conditions
precedent to the effectiveness of such Sections, including, but not limited
to, Commission Approval, have been satisfied)."
4. OTHER TERMS AND CONDITIONS.
4.1 COMMISSION APPROVAL.
4.1.1 With the exception of Sections 3.5 and 4.1.2 of this Amendment, this
Amendment, or in the alternative, the form amendment upon which this
Amendment is based if EDISON submits that form instead to the Commission,
is subject to Commission Approval as to reasonableness for purposes of rate
recovery by EDISON, and shall not become effective until Commission
Approval has been obtained or waived by EDISON, as provided herein.
"Commission Approval," as used in this Amendment, shall mean that the
Commission has issued a final decision, no longer subject to appeal,
approving this Amendment or the standardized form, as appropriate, without
condition or modification unacceptable to the Parties and containing
findings and conclusions confirming the reasonableness of this Amendment
(or the standardized form) comparable to those pertaining to the Agreement
set forth in D.00-00-000 and D.00-00-000, including, but not limited to,
findings that EDISON's entry into this Amendment (or any amendment based
substantially on the standardized form) are reasonable and prudent for all
purposes, including, but not limited to, recovery of all payments made
pursuant hereto in rates, subject only to review with respect to the
reasonableness of EDISON's future administration of the Contract, the
Agreement, and this Amendment. EDISON shall file with the Commission the
appropriate request for approval of this Amendment or the standardized
form, as appropriate, and seek such approval expeditiously. SELLER shall
use reasonable efforts in cooperation with EDISON for the purpose of
obtaining Commission Approval.
4.1.2 During the period commencing on the date that this Amendment has been
executed by each of the Parties and ending on the earliest of (i) March 1,
2002 if Commission Approval has not then been obtained or waived by EDISON,
(ii) the date, if any, on which the Commission issues a decision that
expressly denies
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Commission Approval or (iii) the expiration of the Standstill Period, as
defined in Section 3.5 above, the Parties, and each of them, shall refrain
from asserting any claim or demand against the other or from commencing any
litigation or other proceeding against the other, including, but not
limited to claims for declaratory relief, specific performance, and breach
of contract, (a) concerning or arising from the issue of whether the "MOU
Effective Date," as defined in Section 3.2.3 of the Agreement, has occurred
and/or (b) which would be rendered moot upon the amending of the Agreement
in accordance with this Amendment if Commission Approval of this Amendment
is either timely obtained or waived within the period established in
Section 4.13 below.
4.2 WAIVER OF COMMISSION APPROVAL.
In its sole discretion, EDISON may waive Commission Approval as to all or
any individual aspect of this Amendment requiring Commission Approval at
any time by giving notice of such waiver in writing to SELLER.
4.3. SEMI-MONTHLY PAYMENTS WAIVER.
Notwithstanding any provisions to the contrary in the Agreement concerning
the timing or method of payments for energy and capacity delivered by
SELLER to EDISON, the first payment due SELLER for energy and capacity
delivered to EDISON after it pays the Final Payment Amount shall be paid in
accordance with the payment provisions of the Contract or the Agreement, as
applicable, and SELLER hereby waives, commencing with such first payment,
any right that it might have pursuant to D.00-00-000 to receive
accelerated or semi-monthly payments in lieu of monthly payments pursuant
to the Contract.
4.4 EFFECT ON CONTRACT AND THE AGREEMENT.
Except as expressly provided herein, all provisions of the Agreement and
the Contract, as modified by the Agreement, including but not limited to
the capacity payment provisions, shall remain in effect and unchanged and
shall not be affected by the terms and conditions of this Amendment.
Nothing herein shall be read to extend the term of the Contract.
4.5 NO WAIVER.
None of the provisions of this Amendment, including this paragraph, shall
be considered waived by either Party unless such waiver is given in
writing. The failure of either Party to insist in any one or more instances
upon strict performance of any of the provisions of this Amendment or to
take advantage of any of its rights hereunder shall not be construed as a
waiver of any such provisions or the relinquishment of any such rights for
the future, but the same shall continue and remain in full force and
effect.
4.6 FURTHER AGREEMENTS.
This Amendment shall not be amended, changed, modified, abrogated or
superseded by a subsequent agreement unless such subsequent agreement is in
the form of a written instrument signed by the Parties.
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4.7 ENTIRE AGREEMENT.
This Amendment, taken together with those provisions of the Agreement that
have not been amended by this Amendment, constitutes the entire agreement
of the Parties as to the matters set forth herein and in the Agreement, and
supersedes any and all prior negotiations, correspondence, undertakings,
and agreements between the Parties concerning the subject matter of this
Amendment and Agreement.
4.8 SUCCESSORS AND ASSIGNS: NO PRIOR ASSIGNMENTS.
This Amendment shall be binding upon and inure to the benefit of the
Parties hereto and their respective successors and assigns. SELLER hereby
warrants and represents that prior to its entry into this Amendment, it has
not assigned or otherwise transferred, directly or indirectly, voluntarily,
involuntarily by or operation of law, any rights, claims or causes of
action it may have against EDISON, or any damages, liabilities, losses and
costs that would be released pursuant to the Agreement upon the
satisfaction of the conditions stated therein.
4.9 CONSTRUCTION.
This Amendment is the result of negotiation and each Party has participated
in the preparation of this Amendment. Accordingly, any rules of
construction to the effect that an ambiguity is to be resolved against the
drafting Party shall not be employed in the interpretation of this
Amendment. Furthermore, the underlined headings used in this Agreement are
for reference purposes only and do not themselves constitute any of the
terms of this Amendment.
4.10 GOVERNING LAW.
This Amendment shall be interpreted, governed, and construed under the laws
of the State of California as if executed and to be performed wholly within
the State of California.
4.11 NO PRECEDENT: USE IN LITIGATION.
Each Party agrees that this Amendment arises from unique facts and
circumstances and, as such, without limiting the effect of this Section
4.11, various provisions of this Amendment, such as, but not limited to,
the Fixed Rate, the Alternative Interim Energy Price, Energy Loss
Adjustment Factors, and the Stipulated Amount, shall not be used as
evidence, or the basis for disputing the validity or appropriateness of
such values, rates or prices, or for determination of avoided costs before
FERC, the Commission, or any court or other judicial or quasi-judicial
body, and nothing herein may be used as an admission against any Party.
Further, nothing herein shall constitute or be deemed an admission by
either Party with respect to whether the conditions set forth in the
Agreement that would obligate EDISON to make the Second Partial Payment or
to pay the Final Payment Amount, as each of those terms is defined in the
Agreement, have been satisfied, it being expressly understood that this
Amendment is the result of negotiation and compromise and further that, in
the event that Commission
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Approval of this Amendment has not been either obtained or waived within
the period of time specified in Section 4.1.2 of this Amendment, the
Parties shall be restored to their respective positions vis-a-vis the
interpretation of and performance under the Agreement without regard to
this Amendment. Except as provided in Section 4.1.1 of this Amendment,
neither Party will introduce or otherwise use this Amendment or any of its
terms or conditions in any judicial or administrative proceeding or to
influence any governmental action, other than for the purpose of enforcing
the terms and conditions of this Amendment.
4.12 AUTHORIZED SIGNATURES: NOTICES.
Each Party represents and warrants that the person who signs below on
behalf of that Party has received all requisite authorizations required to
execute this Amendment on behalf of such Party and to bind such Party to
this Amendment. All notices given under this Amendment shall be in writing
and shall be effective on the same day if delivered by personal delivery or
facsimile transmission, one day after sending if delivered by overnight
delivery service, or five days after sending if delivered by first class
U.S. mail. Notices shall be directed to the individual or individuals who
are designated to receive notices under the Contract.
4.13 TERMINATION.
Except as provided herein, this Amendment shall terminate automatically one
hundred twenty (120) days from the date on which this Amendment has been
executed by the Parties if Commission Approval, as defined in Section 4.1.1
of this Amendment, has not been obtained or waived by EDISON; otherwise,
this Amendment shall terminate concurrently with the termination of the
Agreement. Termination of this Amendment as the result of failure to obtain
Commission Approval, as provided above, shall not itself cause the
termination of the Agreement, which shall instead continue in accordance
with its own terms as though this Amendment had not been entered into.
Notwithstanding the foregoing, the provisions of this Amendment that are
not subject to Commission Approval, the provisions in Section 3.6 providing
for a payment adjustment in the event the Alternative Interim Energy Price
is not approved by the Commission, and the entirety of Sections 4.11 and
4.13 shall survive any termination of this Amendment.
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4.14 EFFECTIVE DATE; COUNTERPARTS.
This Amendment shall be effective on the date has been executed by the duly
authorized representatives of the Parties. This Amendment may be executed
in one or more counterparts, each of which shall be deemed an original
document and which together shall constitute a single instrument.
HEBER GEOTHERMAL COMPANY,
a California partnership
By: ERC Energy, Inc. ERC Energy II
a Delaware corporation, a Delaware corporation,
a General Partner a General Partner
By: /s/ Xxxxxxx X. Xxxx By: /s/ Xxxxxxx X. Xxxx
---------------------------------- -----------------------------------
Name: Xxxxxxx X. Xxxx, Xx. Name: Xxxxxxx X. Xxxx, Xx.
Title: Vice President Title: Vice President
Date: November 30, 2001 Date: November 30, 0000
XXXXXXXX XXXXXXXXXX EDISON COMPANY,
a California corporation
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------
Xxxxxxx X. Xxxxx
Chairman, President and Chief Executive Officer
Date: 11.30.01
12
SCHEDULE I
SPECIFIED INDEBTEDNESS
For purposes of Section 3.2.3.3 of this Agreement, as modified by Amendment No.
1 to this Agreement, the term "Specified Indebtedness" shall mean the
outstanding principal of the following obligations of EDISON:
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OBLIGATION PRINCIPAL AMOUNT (APPROX.)
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Bank Credit Facilities $1,650,000,000
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Overdue PX/ISO Obligations 940,000,000
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Defaulted Commercial Paper 531,000,000
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Defaulted Senior Unsecured Notes 400,000,000
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Overdue ESP Payments 231,000,000
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Defaulted Preferred Stock Dividends 17,000,000
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Total: $3,769,000,000
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Specified Indebtedness does not include imbalance energy payments to the
California Department of Water Resources.
The principal amounts shown above are stated solely for the purpose of
determining if partial payments of the Stipulated Amount are to be made under
this Agreement and do not constitute an admission that any amounts are legally
owed to any party by Southern California Edison Company or its affiliates.
