TERMINATION AGREEMENT
THIS AGREEMENT is made September 9, 1997 between XXXXXX HYDRO COMPANY,
INC., a Delaware corporation ("Joseph Hydro"), and PACIFICORP, an electric
utility incorporated in Oregon with corporate headquarters in Portland, Oregon
("PacifiCorp").
RECITALS
A. On July 31, 1991, Joseph Hydro and PacifiCorp entered into an Amended
and Restated Power Purchase Agreement ("Power Purchase Agreement") wherein
Joseph Hydro agreed to sell and PacifiCorp agreed to purchase power generated at
the Joseph Hydro Project located near Joseph, Oregon ("Project").
X. Xxxxxx Hydro and PacifiCorp desire to terminate the Power Purchase
Agreement under the general terms and conditions agreed to by the parties in the
November 15, 1996 letter agreement ("Letter Agreement").
THEREFORE, in consideration of the terms, covenants and conditions set
forth below, the parties agree as follows:
AGREEMENT
1. TERMINATION. Xxxxxx Hydro and PacifiCorp agree that the Power Purchase
Agreement shall terminate as of the Closing Date. The termination of the Power
Purchase Agreement on the Closing Date shall not affect any of the rights or
obligations of either party to the Power Purchase Agreement accruing prior to
the Closing Date. Any payments required or due from any party under the Power
Purchase Agreement shall be made promptly on proper invoice, except as provided
in Section 3.1 below.
2. XXXXXXXX RIDGE OPTION. Under the terms of the Letter Agreement,
PacifiCorp will not acquire the Xxxxxxxx Ridge powerhouse and associated
facilities.
3. CONSIDERATION
3.1 CASH PAYMENT. As consideration for this Agreement, PacifiCorp
agrees to pay Xxxxxx Hydro on the Closing Date the sum of $2,787,000, plus
payment for net metered Output delivered to PacifiCorp after June 23, 1997, but
prior to the Closing
NYFS10...:\84\38684\0003\1924\AGR9277A.030
Date, based upon eight (8) xxxxx or $.008/kWh up to a limit of 3,500,000 kWh
(the "Closing Payment"). In the event the Closing does not occur on or prior to
the Closing Date, all payments will continue in the ordinary course under the
terms of the Power Purchase Agreement until the Closing occurs. All payments
made by PacifiCorp, if any after the Closing Date, for net metered output
delivered after June 23. 1997 shall be credited against the Closing Payment at
the Closing.
3.2 XXXXXX HYDRO'S OBLIGATIONS. As consideration for this Agreement,
Xxxxxx Hydro agrees to terminate production and delivery of Power, surrender the
Power Purchase Agreement and remove all facilities associated with the Project
in accordance with the final agreement Xxxxxx Hydro reaches with the appropriate
governmental agencies. Such removal will include, at a minimum, the two upper
powerhouses, all enclosed equipment in all three powerhouses, all electrical
equipment located outside the powerhouses, including the Project's transmission
line (the "Line") and each powerhouse's headworks. The Line would be removed to
the location of the Xxxxxxxx Ridge powerhouse. All of the Project's generation
related interconnection equipment shall be removed. All equipment necessary to
provide electrical service to the Xxxxxxxx Ridge powerhouse building will be
retained.
4. EQUIPMENT REMOVAL AND SALVAGE RIGHTS
4.1 PACIFICORP'S SELECTION OF EQUIPMENT. As part of the cash
consideration reflected in Section 3. 1, PacifiCorp is entitled to selected
equipment, facilities, and materials. Attached to this Agreement as Exhibit A is
a complete inventory of equipment, facilities, and materials which PacifiCorp
has identified for possible acquisition. Exhibit A also includes equipment,
facilities and materials associated with the Xxxxxxxx Ridge powerhouse. It is
the understanding of the parties that the selected equipment, facilities, and
materials have a fair market value of $10,000.
4.2 PARTIES OBLIGATIONS. PacifiCorp has identified and will xxxx all
equipment, facilities and materials identified on Exhibit A for its acquisition.
PacifiCorp will arrange for and provide at its cost all transportation of
equipment, facilities and materials identified on Exhibit A, except those
facilities designated for removal by PacifiCorp in Exhibit X. Xxxxxx Hydro will
dismantle and load all equipment, facilities and materials listed on Exhibit A.
PacifiCorp will provide ample transportation to allow timely loading so Xxxxxx
Hydro will not incur equipment standby costs. Xxxxxx Hydro will provide
PacifiCorp with fourteen (14) days prior telephonic notice of its estimate of
the required transportation equipment to keep the dismantling of the Project
continuing in an orderly and timely manner.
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5. CLOSING. Closing of this Agreement ("Closing") is scheduled to be on
September 11, 1997 ("Closing Date") at the offices of Wallowa Title Company (the
"Escrow Agent"), in Enterprise, Oregon or at such other time and place as may be
established by mutual consent of the parties. At closing Xxxxxx Hydro shall
deliver to PacifiCorp evidence satisfactory to PacifiCorp that Xxxxxx Hydro has
satisfied the conditions precedent to this Agreement as provided hereunder; and
PacifiCorp shall pay Xxxxxx Hydro the Closing Payment in accordance with
Schedule 3.1 attached hereto. PacifiCorp and Xxxxxx Hydro agree to complete
Schedule 3.1 no later than forty-eight (48) hours prior to the Closing Date.
Xxxxxx Hydro may schedule a later Closing Date with at least two (2) business
days notice to PacifiCorp.
6. REPRESENTATIONS AND WARRANTIES OF XXXXXX HYDRO. To induce PacifiCorp to
enter into this Agreement, Xxxxxx Hydro represents and warrants as follows:
6.1 ORGANIZATION AND EXISTENCE. Xxxxxx Hydro is a corporation duly
organized and validly existing under the laws of the state of Delaware. Xxxxxx
Hydro has all requisite power and authority to own and operate the Project and
to carry on its business as now being conducted.
6.2 AUTHORIZATION. The execution, delivery and performance of this
Agreement have been duly authorized and approved in accordance with all
documents and agreements pertaining to the organization of Xxxxxx Hydro, and
this Agreement constitutes a valid and binding agreement of Xxxxxx Hydro in
accordance with its terms.
6.3 TRANSFER NOT SUBJECT TO THIRD PARTY APPROVAL. The execution and
delivery of this Agreement by Xxxxxx Hydro, and the consummation of the
transactions contemplated hereunder, will not require the consent or approval of
any third party, including any governmental subdivision or regulatory agency
which has not been obtained as of the Closing Date, and will not constitute a
default under any agreement, mortgage, lease or security agreement.
6.4 LIABILITIES. The execution and delivery of this Agreement by
Xxxxxx Hydro, and the consummation of the transactions contemplated hereunder,
will not cause PacifiCorp to become liable to any party for any obligations
incurred or agreements made by Xxxxxx Hydro prior to Closing, or any claim that
had accrued against Xxxxxx Hydro prior to Closing, in connection with the
Project.
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6.5 ACCURACY OF REPRESENTATIONS AND WARRANTIES. None of the
foregoing representations of Xxxxxx Hydro contains any untrue statement of a
material fact or omits or misstates any material facts necessary to make the
statements contained therein not misleading.
7. REPRESENTATIONS AND WARRANTIES OF PACIFICORP. To induce Xxxxxx Hydro to
enter into this agreement, PacifiCorp represents and warrants as follows:
7.1 ORGANIZATION AND EXISTENCE. PacifiCorp is a corporation duly
organized and validly existing under the laws of the state of Oregon. PacifiCorp
has all requisite power and authority to carry on its business as now being
conducted.
7.2 AUTHORIZATION. The execution, delivery and performance of this
Agreement have been duly authorized and approved in accordance with all
documents and agreements pertaining to the organization of PacifiCorp, and this
Agreement constitutes a valid and binding agreement of PacifiCorp in accordance
with its terms.
7.3 TRANSFER NOT SUBJECT TO THIRD PARTY APPROVAL. The execution and
delivery of this Agreement by PacifiCorp, and the consummation of the
transactions contemplated hereunder, will not require the consent or approval of
any third party, including any governmental subdivision or regulatory agency
which has not been obtained as of the Closing Date, and will not constitute a
default under any agreement, mortgage, lease or security agreement.
7.4 LIABILITIES. The execution and delivery of this Agreement by
PacifiCorp, and the consummation of the transactions contemplated hereunder,
will not cause Xxxxxx Hydro to become liable to any party for any obligations
incurred or agreements made by PacifiCorp prior to Closing, or any claim that
had accrued against PacifiCorp prior to Closing, in connection with the Project.
7.5 ACCURACY OF REPRESENTATIONS AND WARRANTIES. None of the
foregoing representations of PacifiCorp contains any untrue statement of a
material fact or omits or misstates any material facts necessary to make the
statements contained therein not misleading.
8. CONDITIONS PRECEDENT TO PACIFICORP'S OBLIGATIONS. PacifiCorp's
obligation to close this Agreement shall be subject to the fulfillment of the
following conditions:
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8.1 GOVERNMENTAL APPROVALS. All required governmental agencies must
agree in final form to the removal plan mitigation program and all other aspects
of the proposed transactions.
8.2 RELEASES. All affected landowners, including without limitation
the Wallowa Valley Improvement District, must release all rights or claims they
may have against the Project or Joseph Hydro on terms acceptable to Xxxxxx
Hydro, in Xxxxxx Hydro's sole discretion.
8.3 BOARD APPROVAL. Xxxxxx Hydro's board of directors must agree
to the terms of this Agreement.
8.4 REPRESENTATIONS, WARRANTIES AND COVENANTS OF XXXXXX HYDRO. All
representations and warranties made by Xxxxxx Hydro in this Agreement shall be
true as of the Closing Date and, as of the Closing Date, Joseph Hydro shall not
have violated or failed to perform in accordance with any covenant contained in
this Agreement.
9. CONDITIONS PRECEDENT TO XXXXXX HYDRO'S OBLIGATIONS. Xxxxxx Hydro's
obligation to close this Agreement shall be subject to the fulfillment of the
following conditions:
9.1 PacifiCorp shall at Closing release any security it may hold for
the performance of Xxxxxx Hydro's obligations under the Power Purchase
Agreement.
9.2 PacifiCorp shall, by proceeding to close, release any and all
claims against Xxxxxx Hydro it holds as of the Closing Date, including, but not
limited to, O/M reimbursements and line loss adjustments prior to the Closing
Date.
9.3 PacifiCorp shall have received prior to the Closing Date all
authorizations necessary to close this Agreement.
9.4 REPRESENTATIONS, WARRANTIES AND COVENANTS OF PACIFICORP. All
representations and warranties made by PacifiCorp in this Agreement shall be
true as of the Closing Date and, as of the Closing Date, PacifiCorp shall not
have violated or failed to perform in accordance with any covenant contained in
this Agreement.
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10. SURVIVAL AND INDEMNIFICATION.
10.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations
and warranties of Xxxxxx Hydro and PacifiCorp in this Agreement and all claims
for breach thereof shall survive the Closing.
10.2 XXXXXX HYDRO'S INDEMNIFICATION. Xxxxxx Hydro agrees to
indemnify, defend, hold harmless and releases PacifiCorp, its successors and
assigns from and against any and all claims, liabilities and obligations of any
kind and description known and unknown arising out of Xxxxxx Hydro's
development, operation and ownership of the Project prior to the Closing Date,
including any claim for monetary damages from the Lower Sheep Creek property
owners and any prepayment penalty on Xxxxxx Hydro's loan with GE Capital.
11. TERMINATION. If this Agreement does not close within thirty (30) days
of the Closing Date, either party may elect to terminate this Agreement with ten
(10) days written notice to the other party. In the event this Agreement is
terminated in accordance with this Section 11, then this Agreement shall be null
and void ab initio as if the parties had never entered into this Agreement and
any and all covenants, obligations and agreements under this Agreement will be
of no force or effect.
12. WAIVER. No waiver of a breach of any covenant, term or condition of
this Agreement by either party hereto on any occasion shall be a waiver of any
other breach of the same or any other covenant, term or condition by the same
party on the same occasion or by either party on any other occasion.
13. RELEASES. Any releases required by this Agreement do not release
either party to this Agreement to any of its obligations under this Agreement.
14. ASSIGNMENT. Neither Joseph Hydro nor PacifiCorp shall assign or
transfer this Agreement or any part thereof without the prior written consent of
the other party, which shall not be unreasonably withheld. Such assignment or
transfer without the prior written consent of the other party shall constitute a
default under this Agreement.
15. SUCCESSION. This Agreement shall be binding upon and inure to the
benefit of the parties, their heirs, personal representatives, successors and
permitted assigns.
16. FURTHER DOCUMENTATION. The parties, upon request, agree to execute and
deliver such further documents as may be required to carry out all of the
provisions of this Agreement.
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17. APPLICABLE LAW. This Agreement shall by construed and interpreted
according to the laws of the state of Oregon.
18. ENTIRE AGREEMENT. This document constitutes the entire agreement
between the parties with respect to the subject matter hereof and supersedes all
prior and contemporaneous agreements, whether or written, with respect hereto.
19. NOTICE. Any notice or other communication required or permitted to by
given hereunder shall be in writing and shall be mailed by certified mail,
return receipt requested, or delivered against receipt to the party to which it
is to be given, addressed as follows:
If to Xxxxxx Hydro, to it at
000 Xxxxxxxxxx Xxxx.
Xxxxxxxx, XX 00000
Attention: President
with a copy to
Xxxxxxx Xxxxxxxxx
Xxxxxx, Xxxxxxx
Xxx Xxxxx Xxxxx
X.X. Xxx 0000
Xxxxxxxx, XX 00000-0000
If to PacifiCorp, to it at:
Manager, New Generation Acquisitions
000 X.X. Xxxxxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
with a copy to
Stoel Rives LLP
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxx, XX 00000-0000
(or to such other address as the party shall have furnished in writing in
accordance with the provisions of this paragraph). Any notice of other
communication given by certified mail
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shall be deemed given at the time or certification thereof except for a notice
changing a party's address which shall be deemed given at the time of receipt
thereof.
20. COUNTERPART DOCUMENTS. This Agreement is being simultaneously executed
in two counterparts, each of which shall have the force and effect of an
original document. Execution of this document may be completed by facsimile with
original documents and signatures to follow.
IN WITNESS THEREOF, the parties have executed this Agreement as of the
date first set for above.
SELLER PURCHASER
XXXXXX HYDRO XXXXXXX.XXX. PACIFICORP
By: By:
----------------------------- ----------------------------
Title: President Title: Senior Vice President
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SCHEDULE 3.1
On the Closing Date the Escrow Agent shall distribute the funds as follows:
Via wire Wire
Transmission to: Amount Instructions
Wallowa Valley
Improvement District $ 25,000 Wiring Instructions to be
determined prior to closing.
Little Sheep Creek
Property Owners $ 145,000
Mr. Xxxxxx Xxxxxxx $ 125,000
Xx. Xxxx Xxxx $ 20,000
General Electric
Capital Corporation $2,100,000
Xxxxxx Hydro* $ 400,000
----------
Total $2,815,000
* For removal costs, miscellaneous expenses and reimbursement of legal expenses
incurred and paid to date.
Exhibit A
XXXXXXXX RIDGE
POWERHOUSE
ITEM QTY. ITEM DESCRIPTION
---- ---- ----------------
All Motor/Generators are W, Type LAC Life Line D 3 phase
and 4160v except as otherwise noted.
1 2 Motor/Generators,W., Type LAC Life Line D, Model TUDP
Frame - 4451, 93 kW, Style 83C20083, 000 X, 0000 rpm
2 1 Motor/Generators,W., Type LAC Life Line D, Model HSDP,
Frame, 5008-3 ?, 205 kW, Style 82F52803, 1776/1818 rpm
3 4 Motor/Generators,W., Type LAC Life Line D, Model HSDP,
Frame 5809L, Style - 82F52801 300kW, 1187/1211 rpm
4 3 Turbine, Worthington, 351kW, 1210 rpm, Model 14LNT20.B
5 2 Turbine, Worthington, 84.3kW, 1210 rpm, Model 6LNT18
6 1 Turbine, Worthington, 199kW, 1815 rpm, Model 10LNT14
NOTE: Turbines and motor/generators to include all piping,
reducers, above concrete floor; all valves, including
pneumatic, manual operating systems;
tachometers;control, protection and monitoring systems;
control panels; switches; fuses; breakers; instrument
transformers, CT'sPT's, metering equipment, including
meters and transducers; PC 700 Programmable Controller,
including monitor, multiplexers and when possible,
interconnecting wiring.
7 1 W Type DHP, 1200A Breaker, Cat. Xx. 00XXX000
0 0 0 Xx xxxxxxxxxxx, 0000/0000 xXX full load, 4160v delta-
20780V Gnd. Y
9 1 Transformer 480V:4160v, 225kva, Pad Mount (W-POW-R-
PAD)
10 1 Switch - 20.8 kv, Tie Point Disconnect (visual dc)
11 1 Breaker 20.8kv, 4W10, PPI FRC22
Valves, Keystone, sizes range 18 1/4, 13.5", 19.5"
12 2 Pneumatic and Hydraulic Butterfly Valves, Actuators and
Controllers, Spares included
13 1 Keystone PUD 240 Valve Gear Box(es)
Exhibit A
XXXXXXXX RIDGE
POWERHOUSE
ITEM QTY. ITEM DESCRIPTION
---- ---- ----------------
14* 1 Dayton Single Phase Air Compressor, 5hp - 230v,
23amp/200 psi, approx. 50 gallon tank,
(Approx. 50 gallon size tank)
VEHICLES
15* 1 1988 Dodge Power Ram 1/2-Ton flatbed pickup
16* 1 1988 Jeep 4X4, Lic. # UUA 830
17* 1 Snow Oat and Tracks
18* BUILDING FIXTURES, such as
ALL Wall fans (plug in's)
ALL Wall Heaters
ALL Ventilating Ceiling Fans
19* ALL MISCELLANEOUS MATERIAL AND LINE EQUIP
--------
*Items that PacifiCorp will remove
Exhibit A
CANAL CREEK
POWERHOUSE
ITEM QTY. ITEM DESCRIPTION
---- ---- ----------------
Induction Motors with Starters 3 phase and 4160v except
as otherwise noted.
1 2 Motor/Generators,W., Type LAC Life Line D, Model TUDP,
75kw, 460 V, Style 83C20039, Frame 4451
2 1 Motor/Generators,W., Type LAC Life Line D, Model HSDP,
175 kw, Style 82F52804, Frame 5009-L,
3 4 Motor/Generators,W., Type LAC Life Line D, Model HSDP,
Frame 5808L, Style - 82F52802
Worthington Turbines
4 4 Turbines, Worthington, Model 14LNHT17, 257.5kW, 1210
rpm, Horizontal
5 1 Turbines, Worthington, Model 10LNT18, 150.4kW, 1210 rpm,
Horizontal
6 2 Turbines, Worthington, Model 8LNT12, 65.5kW, 1815 rpm,
Horizontal
Turbines and motor/generatiors to include all piping,
reducers, above concrete floor; all valves, including
pneumatic & manual operating systems; tachometers;
control, protection and monitoring systems; control
panels; switches;fuses;breakers; instrument
transformers, CT's & PT's, metering equipment, including
meters and transducers; PC 700 Programmable Controller,
including monitor, multiplexers and when possible,
interconnecting wiring.
7 15 Valves, sizes range 18 1/4", 13.5", 19.5" Pneumatic and
Hydraulic Butterfly Valves, Actuators and Controllers,
Spares included (8)air check valves, plus 12-13
hydraulic/pneumatic valves (4-20" mech., 4-20"
pneumatic, 3-14" mech., 3-14" pneumatic, 4-20" spares,
2-14" spares)
8 1 W 3 ph transformer, 4160V delta -20780V Gnd. Y,
1500/1725 kVA, complete
9 1 Padmount transformer, 225 kVA, 480V/4160V
10 1 4160-volt Circuit Breaker, W Type R (Station Main)
Exhibit A
CANAL CREEK
POWERHOUSE
ITEM QTY. ITEM DESCRIPTION
---- ---- ----------------
11 1 37.5 kVA pole-mount sta svc transformer, compl with
LA's, switch, & fuses.
PRESSURE REDUCTION VALVES
12 7 Plus air relief valves, pressure reduction valve CLA-Val
8-50- 01B, pressure relief valves,
Chrispin model PL10, 1/4" check valves (7 units)
13* 1 Dayton Single Phase Air Compressor, 5hp - 230v,
23amp/200 psi, approx. 50 gallon tank,
(Approx. 50 gallon size tank)
14 1 Motor, 1hp 3 phase, trash rack cleaning system
15* 1 Xxxx, 2 ton, JE6695, Stk. #187882/8 ton long ram xxxx
16 1 AMPCO CC-9 Station main breaker panel
17 1 Westinghouse numalogic PC 700B, 13 cards, 7 panels,
18 1 W Type DHP Circuit Breaker
19 1 Fuse puller
20 1 STEEL METAL BUILDING STRUCTURE, TO INCLUDE
ALL Wall fans (plug in's)
ALL Wall Heaters
ALL Ventilating Ceiling Fans
ALL Louvered Shutters at ends of Building
21* 1 Eyewash station
22* MISCELLANEOUS MATERIAL AND LINE EQUIPMENT IN
BLDG.
* Items that PacifiCorp will remove
Exhibit A
LITTLE SHEEP CREEK
POWERHOUSE
ITEM QTY. ITEM DESCRIPTION
---- ---- ----------------
1 4 Motor/Generators, W, Type LAC Life Line D, Model VSWl,
Frame 6808-P30, 860kW
2 1 Motor/Generators, W, Type LAC Life Line D, Model VSWl,
Frame 5009-P20, 220kW
3 1 Motor/Generators, W, Type LAC Life Line D, Model VSWl,
Frame 6808-P30, 480kW
4 4 Turbines, Xxxxx, Model MG42Y, 857kW, 1200 rpm, vertical,
with base plate
5 1 Turbines, Xxxxx, Model MG81, 561kW, 1800 rpm, vertical,
with base plate
6 1 Turbines, Xxxxx, Model LT41, 235kW, 1800 rpm, vertical,
with base plate Turbines and motor/generators to include
all piping, including reducers, above concrete floor;
all valves, including pneumatic, hydraulic and manual
operating systems; intake heads; tachometers; control,
protection & monitoring systems; control panels;
switches; fuses; breakers;instrument transformers, CT's
& PT's; metering equipment, including meters and
transducers; PO-700 Programmable Controller, including
monitor, multiplexers and, when possible,
interconnecting wiring.
7 1 Lighting Panel
8 1 Uninterruptivle Power Supply
9 1 4160-volt Circuit Breaker, X00XXX000, 1200A
10 1 37.5 kVA pole-mount station service transformer,
complete and LA's, switch, & fuses.
11 1 Relay Panel, complete, including transformer diff. relay
and ground voltage relay.
12 1 Line disconnect switch, 20.8kV, LS-21, complete with
controls.
13 1 Control Panel for hydraulic pump.
14 1 W 3 phase transformer, 4160V delta-20780V Gnd. Y,
6250/7812 kVA, complete
15* 1 COMPLETE STEEL BUILDING STRUCTURE TO
INCLUDE:
16* ALL Wall Fans (plugin's)
17* All Wall Heaters
Exhibit A
LITTLE SHEEP CREEK
POWERHOUSE
ITEM QTY. ITEM DESCRIPTION
---- ---- ----------------
18* All Ventilating Ceiling Fans
19* All Louvered Shutters at ends of Building
MISCELLANEOUS MATERIAL AND LINE EQUIPMENT STORED IN BUILDING
20* 1 Xxxx chemical solution pump, complete with 1/20 HP
fan-cooled 115-volt, magnetic drive
21* 1 Dayton capacitor start motor, 1/3 HP, 1725 rpm,
115/230-volt, Mod. 5K341U
22 4 Astrolite heavy duty, deep cycle 12-volt batteries
23* 1 Baldor Industrial motor, 3-phase, Frame 184C, Ser. #
F991, 5 HP, w tanks, line & valves.
24* ALL Xxxx Fuses (located on shelving) - loose or in boxes
25* 1 GE Permanent - Magnetic Tach. Generator, Mod. No 5BC42AB
1780C RPM 1000
26* 1 Red Vise on Workbench
27* 1 Non-Installed eye wash station
28* 1 Six foot step ladder
*Items that PacifiCorp will remove
