HomeMy WebLinkAbout200407022nd Response of ID Power to Staff.pdfBARTON L. KLINE , ISB # 1526
MONICA B. MOEN , ISB # 5734
Idaho Power Company
1221 West Idaho Street
O. Box 70
Boise, Idaho 83707
Telephone: (208) 388-2682
FAX Telephone: (208) 388-6936
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Attorneys for Idaho Power Company
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF A PETITION FILED BY
IDAHO POWER COMPANY FOR APPROVAL)
OF MODIFICATIONS TO THE SECURITY
PROVISIONS REQUIRED TO BE INCLUDED
IN AGREEMENTS BETWEEN IDAHO
POWER AND CO-GENERATORS
AND SMALL POWER PRODUCERS
CASE NO. IPC-03-
IDAHO POWER COMPANY'
RESPONSE TO SECOND
PRODUCTION REQUEST OF
COMMISSION STAFF
COMES NOW , Idaho Power Company ("Idaho Power" or "the Company
and in response to the Second Production Request of the Commission Staff, dated
June 11 , 2004, herewith submits the following information:
REQUEST NO.7: In response to Staff Production Request No., in Case
No. IPC-03-, Idaho Power Company identified "all QFs with levelized power
purchase contracts that have defaulted and ceased operations with outstanding over
payment liability.Production Request 5(B) requested specifics on contract
enforcement measures pursued by the Company to collect any outstanding over
payment liability. By way of further response, please indicate:
IDAHO POWER COMPANY'S RESPONSE TO SECOND PRODUCTION
REQUEST OF COMMISSION STAFF Page
7(A) Whether the Company for each project in default had a filed second
lien to secure over payment liability.
7(8) For each project without a second lien, please indicate whether a
second lien was required under the Commission s -292 security requirements.
7(C) For each project subject to -292 security requirements but without a
second lien , please indicate whether a posting of liquid security was required.
RESPONSE TO REQUEST NO. 7(A): All of the referenced QF projects
pre-dated the U-1006-292 case. As such , no second liens or liquid security were
required of the subject projects; therefore, the Company filed no such liens or required
liquid security to secure overpayment liability for the following four projects that were
originally identified in the Company s Response to Request No.5 of the Commission
Staff's First Production Request in this matter:
Heed Company/Slaughterhouse Creek
Stevenson # 1 and Stevenson # 2
Y -8 Hydro (Northside Canal)
Boise Cascade Emmett (Emmett Power Company).
The Response to this Request was prepared by Randy Allphin, Contract
Administrator Power Supply Planning, Idaho Power Company, in consultation with
Monica B. Moen, Attorney for Idaho Power Company.
RESPONSE TO REQUEST NO. 7(8): Please see the Response to
Request No. 7(A).
IDAHO POWER COMPANY'S RESPONSE TO SECOND PRODUCTION
REQUEST OF COMMISSION STAFF Page 2
The Response to this Request was prepared by Randy Allphin , Contract
Administrator Power Supply Planning, Idaho Power Company, in consultation with
Monica B. Moen , Attorney for Idaho Power Company.
RESPONSE TO REQUEST NO. 7(C): Please see the Response to
Request No. 7(A). Furthermore, these projects were not required to post liquid security.
The Response to this Request was prepared by Randy Allphin , Contract
Administrator Power Supply Planning, Idaho Power Company, in consultation with
Monica B. Moen , Attorney for Idaho Power Company.
REQUEST NO. 8(A): Please identify the Idaho Power employee(s) who
are now and who have previously had responsibility for QF contract administration and -
292 security requirements compliance monitoring? For each individual please describe
their specific responsibilities.
8(8) Please describe the Company policy and procedures for
contract administration and -292 security requirement compliance monitoring. If the
policy and procedures are written please provide a copy.
8(C) Please describe the Company policy and procedures regarding
non-compliance with -292 second lien requirements? If the policy and procedures are
written please provide a copy.
RESPONSE TO REQUEST NO. B(A):Randy Allphin Contract
Administrator Power Supply Planning, Idaho Power, has had responsibility for QF
contract administration and -292 security requirements compliance monitoring since
1998. His predecessor was John Ferree.
IDAHO POWER COMPANY'S RESPONSE TO SECOND PRODUCTION
REQUEST OF COMMISSION STAFF Page 3
Mr. Allphin is assigned to the Power Supply Planning Department of Idaho
Power and reports directly to Karl Bokenkamp, Manager of Power Supply Planning.
Between 1984 and 1998, Mr. Allphin worked closely with his predecessor, John Ferree,
and assisted Mr. Ferree with QF accounting, reporting and the financial analysis of the
QF agreements.
As Contract Administrator, Mr. Allphin s current job responsibilities are:
Functioning as the initial contact for all QF s developers and QF-related
issues;
Coordinating, administering and monitoring all existing QF agreements;
Negotiating new QF agreements; and
Working with appropriate personnel and resources within Idaho Power to
resolve QF-related issues including, but not limited to , the Company
Legal Department, it's Delivery Business Unit and its Insurance and Risk
Management Business Unit.
The Response to this Request was prepared by Randy Allphin , Contract
Administrator Power Supply Planning, Idaho Power Company, in consultation with
Monica B. Moen , Attorney for Idaho Power Company~
RESPONSE TO REQUEST NO. B(B):In 1982 , at the inception of
agreements between QF developers and Idaho Power, the Company developed an
extensive computer system using Focus computer software to document and track the
QF agreements and the terms and conditions contained therein. In addition to this
computerized inventory system , various other spread sheets and tracking mechanisms
were developed over time to provide the necessary information and data associated
IDAHO POWER COMPANY'S RESPONSE TO SECOND PRODUCTION
REQUEST OF COMMISSION STAFF Page 4
with the unique provisions associated with the various agreements.
In 2002 , the Company adopted a new QF-tracking system that employs
Excel spreadsheets and Access databases to replace the older Focus-based computer
system. The new system combined the Focus-based computer system and the other
computer subsystems and databases that had developed since 1982 to track QF
activities and issues into a single system for ease of administering the various ongoing
QF agreements.
In particular, the -292 security requirements are noted for each
agreement included in the database and notes concerning these requirements for the
applicable agreement are documented. Routinely, the Company generates various
reports concerning -292 compliance; those reports are reviewed by the Company to
assure continued compliance. In addition , the Company has relied upon the services of
outside counsel to prepare and review documents pertaining to the second lien
requirements of the Company s agreements with QF developers.
The Response to this Request was prepared by Randy Allphin, Contract
Administrator Power Supply Planning, Idaho Power Company, in consultation with
Monica B. Moen , Attorney for Idaho Power Company.
RESPONSE TO REQUEST NO. B(C):As noted in the prevIous
Response, Idaho Power routinely monitors its QF projects to assure that the projects
conform to all of the terms and provisions of the projects agreements with the
Company. In instances in which a project does not comply with the requirements of its
QF agreement, it is the Company s policy to provide written notice of default pursuant to
the Firm Energy Sales Agreement. The Company subsequently works with the entity to
IDAHO POWER COMPANY'S RESPONSE TO SECOND PRODUCTION
REQUEST OF COMMISSION STAFF Page 5
attempt to bring the project into compliance. In those cases in which compliance is not
attained voluntarily, the Company will declare the contract in breach and file a notice of
contract termination with the Commission.The contract will be terminated foll'owing
Commission approval of said termination. Please refer to the Company s Response to
Request No.5 of the Commission Staff's First Production Request in this matter.
Due to the straightforward nature of determining whether a project is
compliance with the terms and conditions of its agreement with the Company and the
use of the Company s computerized monitoring system, the Company has not drafted
any written policies or procedures concerning QF agreement compliance.
The Response to this Request was prepared by Randy Allphin , Contract
Administrator Power Supply Planning, Idaho Power Company, in consultation with
Monica B. Moen , Attorney for Idaho Power Company.
REQUEST NO. 9(A): Please identify all Idaho Power/QF contracts with
levelized rates that are in non-compliance with -292 security requirements and that have
not posted liquid security for over payment liability.
9(8)For each instance of non-compliance , please describe the
Company s related -292 security requirement enforcement efforts.
RESPONSE TO REQUEST NO. 9(A): Twenty-eight of the Company s QF
agreements contain provisions requiring that the facilities obtain the original -292
insurance.As Staff recalls IPUC Order No. 29482 amended the original -292
insurance requirements to comport with current industry standards. Of the 28
projects that are required to obtain this insurance , only one project, Black Canyon # 3, is
currently not in compliance with the revised -292 insurance requirements.The
IDAHO POWER COMPANY'S RESPONSE TO SECOND PRODUCTION
REQUEST OF COMMISSION STAFF Page 6
Company intends to provide written notification to Black Canyon # 3 concerning this
matter the week of July 5, 2004.
As noted in Order No. 29482 , those QF projects that formerly were
required to obtain Valued Loss of Income (VLI) insurance may, alternatively, secure
insurance that satisfies the minimum requirements set out in that Order. Twenty-three
of the Company s QF projects are required to have the VLI insurance. At the time of
approval of Order No. 29482, 13 of the Company s 23 projects were in compliance with
the Order; the remaining 10 agreements within this category were not in conformance at
the time IPUC Order No. 29482 was issued. Notification of non-compliance has been
sent to each of these ten projects. To date, three projects have responded to the
Company s notice of non-compliance and now conform to the requirements. During the
week of July 5 , 2004 , the Company will send notices of default to the remaining seven
QF projects. Those projects are:
Cu rry Cattle
Faulkner Brothers
Marco Ranches
Reynolds Irrigation
Snedigar
Trout Co.
White Water Ranch.
The Response to this Request was prepared by Randy Allphin , Contract
Administrator Power Supply Planning, Idaho Power Company, in consultation with
Monica B. Moen , Attorney for Idaho Power Company.
IDAHO POWER COMPANY'S RESPONSE TO SECOND PRODUCTION
REQUEST OF COMMISSION STAFF Page 7
RESPONSE TO REQUEST NO. 9(8): Please refer to the Company
Response to Request No. 8(C).
The Response to this Request was prepared by Randy Allphin, Contract
Administrator Power Supply Planning, Idaho Power Company, in consultation with
Monica B. Moen , Attorney for Idaho Power Company.
REQUEST NO.1 O(A): Please provide copies of all Company documents
(written and electronic) of any kind or description , however created, produced
reproduced or stored relating to the Company s proposal in Case No. IPC-03-16 to
eliminate the -292 second lien requirement.
10(8) Please provide copies of all Company documents (written and
electronic) of any kind or description, however created, produced , reproduced or stored
relating to the Company s alternate proposal in Case No. IPC-03-16 to outsource or
retain outside counsel to complete the paperwork required to establish -292 second lien
rights , including the basis for the estimated $1000 to $1500 legal fee for establishing a
second lien on a QF project.
RESPONSE TO REQUEST NO.1 DCA): Please refer to the accompanying
document identified as "Attachment to Response to Request for Production No.1 O(A).
In addition , prior to filing its Petition in this matter, Company representatives met with
Commission Staff to discuss the options of eliminating both the second lien requirement
and the alternative requirement to post liquid security.While the Company
subsequent pleadings did not explicitly request that the 350/0 liquid security provisions
also be eliminated , it was the Company s intent that, if the Commission rescinded the
second lien requirement, the requirement to post liquid security would also be rescinded
IDAHO POWER COMPANY'S RESPONSE TO SECOND PRODUCTION
REQUEST OF COMMISSION STAFF Page 8
by the Commission.
The Response to this Request was prepared by Randy Allphin, Contract
Administrator Power Supply Planning, Idaho Power Company, in consultation with
Monica B. Moen , Attorney for Idaho Power Company.
RESPONSE TO REQUEST NO. 10(B): No documents exist that are
responsive to this Request. The estimated legal costs were derived by consulting
outside legal counsel who specialize in the security interest documentation and
perfection processes.
The Response to this Request was prepared by Randy Allphin , Contract
Administrator Power Supply Planning, Idaho Power Company, in consultation with
Monica B. Moen , Attorney for Idaho Power Company.
REQUEST NO. 11: Please provide three sample copies of second liens
prepared and filed by the Company for Idaho Power/QF contracts with levelized rates.
RESPONSE TO REQUEST NO. 11: Please refer to the accompanying
public documents identified as "Attachment to Response to Request for Production No.
11." A substantial number of documents containing information proprietary to the QFs
support the representative documents provided to the Commission Staff in response to
this Request. These proprietary documents are available for Staff review during normal
business hours at the offices of Idaho Power Company.
The Response to this Request was prepared by Randy Allphin , Contract
Administrator Power Supply Planning, Idaho Power Company, in consultation with
Monica B. Moen, Attorney for Idaho Power Company.
IDAHO POWER COMPANY'S RESPONSE TO SECOND PRODUCTION
REQUEST OF COMMISSION STAFF Page 9
DATED at Boise , Idaho, this 2nd day of July 2004.
(B.
MONICA B. MOEN
Attorney for Idaho Power Company
IDAHO POWER COMPANY'S RESPONSE TO SECOND PRODUCTION
REQUEST OF COMMISSION STAFF Page 10
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 2nd day of July, 2004 1 served a true
and correct copy of the within and foregoing IDAHO POWER COMPANY'S RESPONSE
TO SECOND PRODUCTION REQUEST OF COMMISSION STAFF upon the following
named parties by the method indicated below, and addressed to the following:
Scott Woodbury
Deputy Attorney General
Idaho Public Utilities Commission
472 W. Washington Street
o. Box 83720
Boise, Idaho 83720-0074
Hand Delivered
S. Mail
Overnight Mail
FAX (208) 334-3762
()3
MONICA B. MOEN
CERTIFICATE OF SERVICE
ATTACHMENT
RESPONSE TO REQUEST FOR PRODUCION
NO.10(A)
IIIR
, . .. .
An IDACORPCompany
(Intra-Company Correspondence)
Re: CSPP Insurance Requirements Date: July 1 , 2003
To: Karl Bokenkamp
Randy Meyer
Bart Kline
Monica Moen
Ric Gale
Greg Said
From: Randy C Allphin
Annually, Randy Meyer conducts an insurance audit of various CSPP project's compliance with the
insurance requirements of their specific agreements with Idaho Power Company. This audit has been
completed and some delinquencies have been identified.
Notification has been sent to the various projects of their specific delinquencies. In response to these
notifications many projects have responded back to Idaho Power that the insurance as required is currently
not available from the insurance industry. Idaho Power has verified that in fact many of the specific
insurances are not any longer available from the insurance industry.
Very brief background on Insurance requirements
Many of our CSPP agreements are "Firm Levelized" agreements. This levelized pncmg
concept theoretically results in the project receiving payments higher then the value of the
energy in the early years of the agreement and payments lower then the value of the energy in
the later years of the same agreement.
Therefore, insurances and security is required within the agreement to provide protection to
the Idaho Power ratepayer in the event the project terminates operations prior to the full term
of the agreement. This early termination would result in the early year s overpayments not
being recovered in the later years due to the fact that the project did not continue operations in
the later years of the agreement.
In response to the unavailability of insurance, Idaho Power Company as required under prior IPUC
orders, suggested the projects convert to the "292 Case Package" of insurance and security. Projects have
responded in various ways:
Some projects have already secured parts of the "292 Case Package , others have previously
converted, some find various provisions within the "292 case package being unattainable, and others
believe they are legally not required to obtain the required insurance and lor any alternative
Insurances.
, The responses clearly indicated a solution needed to be researched and adopted.
Idaho Power Company met with the IPUC staff and discussed the issues. Consensus was that as the
project's responses to insurance requirements were justifiable and potentially defendable in a court of law
the levelized overpayment still exists within these agreements.
Therefore a reasonable, realistic solution to these insurance and other security measures is required
that will maintain an acceptable level of protection for the Idaho Power Company ratepayer.
Proposal -
Comprehensive General Liability Insurance
No Change from current requirements
Valued Loss of Income Insurance
Replace this requirement with a "Revised 292 Package
292 Case Package
Replace this requirement with the "Revised 292 Package
Revised 292 Package being:
Insurance V arious Business interruption insurances required, including
current insurance industry limits and deductible language.
Engineering Certificate No change from current requirements of periodic requirement
Second Lien Delete 2nd lien requirement.
My thought is these changes would result in:
./
Insurance requirement modifications - updated to current insurance standards and
available products that provide a reasonable level of insurance protecting the Idaho
Power ratepayer, while being insurance products that the CSPP projects can reasonably
secure.
./
Continuation of the Engineering Certification - provides ongoing independent 3rd party
review of the operations and maintenance of the projects.
./
Deletion of the 2nd lien - elimination of product of marginal value that at times creates a
hurdle in complying with the other items within the "292 Case Package
As the current insurance and security requirements are IPUC approved upon agreement of a
proposal, I will arrange a meeting with the IPUC staff to discuss our proposal and what the appropriate
IPUC filings would be required.
Attached is a detailed discussion of the various issues, if you have any questions please contact me at
your convenience and/or I would be glad to set up a short meeting if warranted.
The majority of the Cogeneration and Small Power Production (CSPP) Firm Energy Sales Agreements with
Idaho Power Company require Comprehensive General Liability Insurance and either Valued Loss of Income
Insurance or the "292 Case" insurance and security requirements (as required by various Idaho Public Utilities
Commissions (IPUC) rulings and orders).
Idaho Power Company proposes to revise the insurance requirements within the existing Cogeneration and
Small Power Production (CSPP) agreements and to require in future agreements:
Comprehensive General Liability Insurance
No Change from current requirements
Valued Loss of Income Insurance
Replace this requirement with the Revised 292 Case Package
292 Case Package
Replace this requirement with the Revised 292 Case Package
A complete description and discussion of the various insurance requirements is included within this document.
Comprehensive General Liability Insurance
Current Typical CSPP contract requirements:
For both bodily injury and property damage equivalent to the amount of $1 000,000 combined
single limit. Such insurance shall:
a) include an endorsement naming Idaho as an additional insured insofar as work performed
under this agreement is concerned; andb) include a provision stating that such liability policies shall not be canceled or their limits
of liability reduced without thirty (30) days ' written notice to Idaho.
This insurance has become more expensive for all industries. As this is basic insurance for bodily
injury and property damage, at any price it must be continued to be required.
Valued Loss of Income Insurance
Current Typical CSPP contract requirements:
Covering, at a minimum, the perils of fire, extended coverage, vandalism and malicious mischief,
earthquake and flood and loss arising out of accidents to boilers and/or pressure vessels and
mechanical and electrical breakdown coverage for turbines and generators. Such policies shall:
a) Be in amounts equal to the repayment amounts shown in Appendix that would be owed
to Idaho pursuant to paragraph 21.
b) Include aprovision stating that this policy shall not be canceled or the limits reduced
without (30) days ' written notice to Idaho
c) Include Idaho as an additional insured and loss payee.
Paragraph 21.specifies the liquidated damages that would be paid to Idaho in
accordance with the lump sum refund payment schedule contained in Appendix
Approximately 24 existing CSPP projects are currently delinquent on this insurance requirement.
./
In the past, the Idaho Public Utilities Commission (IPUC) issued various orders that
established a new Insurance and Security package, known as the "292 case package . The
292 case package" is currently being used in new agreements. Agreements prior to the
292 case package" are allowed to convert to these requirements if they elect to do so.
Some projects have converted to the "292 case package . In the past it was found
that this package was less expensive and more attainable then the required Valued
Loss of Income Insurance.
./
Projects have been notified of the Valued Loss of Income insurance delinquencies:
Numerous CSPP projects have notified Idaho Power Company that this insurance
is no longer available from the insurance industry at any price.
Idaho Power Company has contacted various insurance agents and has
confirmed that the insurance is not available.
One project has responded back to Idaho Power Company that as a matter of law
(Doctrine of Impossibility of Performance), they are excused from compliance
with this insurance requirement.
Idaho Power Company has met with the Idaho Public Utility Commission
Staff (IPUC) and discussed this issue. The consensus was that in fact the
Doctrine of Impossibility of Performance was potentially a legitimate
claim and it was unlikely that the insurance requirement could be enforced
in a court of law.
Idaho Power Company suggested to the project owners that the "292 case
package" was an alternative to the Valued Loss of Income insurance.
The project has responded that as the project is excused from the Valued
Loss of Income insurance requirement (Doctrine of Impossibility),
therefore no alternative is required.
They go on to state that as their agreement was entered into in 1984, many
years before -the "292 Case , the "292 Case" cannot be applied to their
agreement.
In addition - their current financial arrangements do not permit them to
grant Idaho Power a second lien as is required in the "292 case package
thus making the current "292 case package" not an alternative for this
project, regardless.
Idaho Power Company has met with the Idaho Public Utility Staff (IPUC) and
discussed these issues. The consensus was:
If in fact the project is excused from the Valued Loss of Income Insurance
requirement (as a matter of law), then an alternative ("292 Case package
potentially would also not be required.
The projects financial arrangements may not allow Idaho Power Company
a second lien position. (and it is reasonable to assume this to be true)
Therefore, the current "292 case package" is not an option for this project.
292 Case Package
In general the "292 Case Package is made up of three basic parts:
../ Insurance Various insurances, with a focus on "Business Interruption
Insurance
../ Engineering Certificate The Project is required to provide periodic engineering
certificates.
../
Second Lien Idaho Power places a second lien on the projects assets
Current Tvpical 292 Case CSPP contract requirements:
Insurance
TYPE
Commercial
General
Liability
All Risk Property
Catastrophic Perils
(Earthquake
Flood)
Boiler/Machinery
Loss of Income
(Business
Interruption)
LIMITS MAX DEDUCTIBLE
The greater of 15% of plant cost or
$1 million/incident
50/0 of plant cost
Not less than 90% of
plant cost
0% of plant cost or
$25 000, whichever is
greater
Not less than 60% of
plant cost
0% ofplant cost
Not less than 90% of equipment cost 00/0 of equipment cost or
$25 000, whichever is
greater
Not less than 75% of estimated daily
income; not less than 20% of
estimated annual income
30 days of income
All of the above insurance coverages shall be placed with insurance
companies with an A. M. Best rating of A- or better.
En1!ineerin1! Certification
NOTE: Registration in Idaho is required of all professional engineers (PE)
proposing to supply the certifications described below.
O&M Certification initially a PE must certify that the Project has written
policies and procedures for Operation and Maintenance and that they are
adequate to assure the Facility s viability under normal operating conditions
for the life of the Project s Agreement.
ngoing O&M Certification Every three (3) years for the first twelve (12)
years after the IPUC approves the amendment and every two (2) years
thereafter during the remaining term of the Agreement, Seller will supply
Idaho Power with an Engineer's Certification of Ongoing Operations and
Maintenance from aPE.
Standard Forms Suggested certification forms.
Second Lien ri1!hts Securitv Interests
The Project will provide Idaho Power with adequate security interest in the Project
including but not limited to:
i. A Deed of Trust securing the Project real property and improvements.
Title insurance.
3. A contractually stipulated first lien amount. (If any)
4. Appropriate U. C. C. security interests in personal property and fixtures.
5. Assignments for security purposes of all contract rights, including the Firm
Energy Sales Agreement, water rights, permits, licenses, leases, easements
etc., relating to the Project.
The form of the liens will be tailored to the individual projects depending on
the first lien financing and other individual characteristics of the project.
Subordination Idaho Power's lien rights will be subordinated only to the
initial long-term financier's lien. (If any)
Insurance Requirements
We have reviewed the existing "292 Case package" insurance requirements in comparison
to the actual insurances being carried by the projects required to have the "292 Case package
The majority of the projects were in compliance with these insurance requirements in title
but not in detail. Meaning, they did have in place the insurances in title, but the limits and
deductibles as specified within each insurance category was not available from the insurance
industry and thus they are carrying insurance that is the currently available products from the
insurance industry.
Idaho Power Company has contacted various insurance providers and has confirmed this
information. The insurance in title is available, but the current "292 Case package
insurance requirement specific language, in regards to Limits and Deductibles is outdated
and not available from the current insurance industry.
Engineering Certification requirements
The majority of the projects maintain compliance with the Engineering Certification on a
routine bases. When a lapse occurs, Idaho Power notifies the Project of the lapse and typically the
Certification is completed in a timely manner.
Second Lien rights - Security Interest
In order for a project to comply with the "292 Case package" the 2nd lien is put in place
either at the origin of the agreement or at the time the project converted to the "292 Case package
Value of Idaho Power Company s 2nd Lien position?
New contracts
The 292 Case requires Idaho Power Company to place a second lien on the assets
of the project which elects a "Firm, Levelized agreement"
Second lien is placed on the equipment at the project. The value of this equipment
varies tremendously. The smaller, less sophisticated, projects quite often make use of used
and/or rebuilt equipment, in some circumstances irrigation pumps running backwards.
Whereas the larger projects quit often use utility grade generators and equipment.
Regardless as to the value of the equipment, typically the value of equipment is heavily
financed and the financial institution has a first lien on these assets.
Once the equipment is installed, regardless as to it's initial cost the actual salvage
value (value that could be extracted in exercising of a lien) becomes significantly less then
the original value of the equipment. This is for many reasons;
. U sed equipment value
Customized equipment for a specific site is not easily used at another
location
Removal cost is high
Site restoration costs
Transportation to new site
Limited resale markets - Alternative uses of equipment is limited.
In the early years of an agreement, due to the initial heavy project financing and
value of the physical assets, most likely a default of a project would result in the value of
the assets covering only a portion of the first lien. Leaving nothing for Idaho Power
second lien position.
:)-
As a project ages the financing is paid on or at least reduced, however the value of
the assets has also depreciated over the same time frame. If a project were to default, even
with the reduced first lien obligation, the value of the assets remaining for the second lien
would be marginal at best due to the removal costs etc.
The majority of the value of a project is not the actual value of the physical
equipment; instead the marketable and bankable value of a project is the value of the
project revenues as a result of the project delivering energy to Idaho Power under the
Energy Sales Agreement.
Historically we have observed that when projects fall into financial difficulties
almost always the financial institution backing the project resells the project and maintains
the Energy Sales Agreement in good standing. The Energy Sales Agreement is the only
means the financial institution has of mitigating its losses and/or making the assets a
marketable property.
Existing Contracts
When projects request, the project can amend there existing agreement to the "292
Case Package . Many of the projects initial financial arrangements do not allow Idaho
Power a second lien position, thus resulting in the projects not being able to convert to any
of the "292 Case Package" requirements.
Even if an existing project is able to grant Idaho Power a second lien, then the
value of the second lien follows the discussion as explained above.
Proposed Revised "292 Case Package
Insurance Various insurances, with a focus on "Business Interruption
Insurance
Revised Limits and Deductible language
Engineering Certificate The Project is required to provide periodic engineering
certificates.
No Change
Second Lien Idaho Power places a second lien on the projects assets.
Delete the 2"d Lien requirement
t'roposed CSt't' contract requirements:
Revised Insurance
TYPE
Commercial General
Liability
All Risk Property
Catastrophic Perils
(Earthquake
Flood)
Boile riM achine ry
Loss of Income
(Business
Interruption)
LIMITS (Revised)
$1 Million per occurrence
Not less then 80% of
Replacement Cost.
Not less then 80% of
Replacement Cost.
Not less then 80% of
Replacement Cost.
Not less than 75%
estimated daily income; not
less than 20% of estimated
annual income
MAX DEDUCTIBLE (Revised)
Consistent with current Insurance
Industry Utility practices for a
similar property
Consistent with current Insurance
Industry Utility practices for a
similar property
Consistent with current Insurance
Industry Utility practices for a
similar property
Consistent with current Insurance
Industry Utility practices for a
similar property
Consistent with current Insurance
Industry Utility practices for a
similar property
All of the above insurance coverages shall be placed with insurance
companies with an A. M. Best rating of A- or better.
An item-by-item comparison of the current existing Insurance requirements vs the proposed
Insurance requirements is attached as Exhibit
Engineering Certification
NOTE: Registration in Idaho is required of all professional engineers (PE)
proposing to supply the certifications described below.
O&M Certification InitiaLLy a PE must certify that the Project has written policies
and procedures for Operation and Maintenance and that they are adequate to assure
the Facility s viability under normal operating conditions for the life of the Project
Agreement.
ngoing O&M Certification Every three (3) years for the first twelve (12) years
after the IPUC approves the amendment and every two (2) years thereafter during
the remaining term of the Agreement, Seller will supply Idaho Power with an
Engineer's Certification of Ongoing Operations and Maintenance from aPE.
3. Standard Forms Suggested certificationforms.
The Engineering Certification requirements are unchanged from the current
requirements.
Second Lien rights Securitv Interests
Delete this requirement,
As previously discussed the value of the second lien is marginal at best. In addition, for
existing projects, this requirement frequently cannot be met as the existing principal financial
arrangements quite often do not permit the granting of the second lien.
Implementation Plan -
Upon agreement by Idaho Power of these modifications and subsequent approval by the IPUC, it
will be necessary to notify the impacted parties and require compliance.
Enforcement of Insurance requirements
General Comprehensive Liability Insurance
These insurance requirements will be strictly enforced without exception. Any projects
delinquent on this insurance will be issued a Contract default notice ASAP. No change
from the current processes.
Valued loss of Income Insurance
a. Projects will be offered the alternative of complying with the revised "292 Case Package
b. If a project refuses, Idaho Power Company legal department will be notified and
appropriate action will be taken. It is very important that all projects receive consistent
treatment on these issues.
292 Case Package
Projects will be informed of the revised" 292 Case Package" and will be required to
comply with the revised "292 Case Package" or the original "292 Case Package
Alternatives tc)" Insurance
In lieu of Valued Loss of Income Insurance or the 292 Case Insurance, financial
alternatives may be viable (escrow accounts, letter of credit, parent guarantees, etc). An
acceptable alternative must place Idaho Power Company in the same position as the
required insurances and liens being replaced. As various "eras" of agreements have
different methods of establishing these values, it will require that each contracts financial
alternative be assessed individually. Keeping in mind to provide a consistent approach to
all agreements of the same era.
Id
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STATE OF IDAHO FINANCING STATEMENT FORM UCC-Instruct: lns: 1. PLEASE TYPE AND SIGN THIS FORM IN BLACK2, Filing fees: a. With Secretary of State, Except fl?r pre-paid account users, enclose filing fee of $6.00 if form is typed, or $10.00 ifnot typed. For attachments, add $1.00 per printed paae. Pre-paid account users must enter Customer Number in
::;:.
Customer account number" block to right.b. Fixture filing with County Recorder. Enclose recording fee of $3.00 per page.
File only the original. Make copies for your file. The original will be retumed as your acknowledgment.
Enter only one debtor's name or assumed name per debtor block exactly as it is to be indexed. If more than four names, use an attached sheet.Enter individual debtor names: Last, First, Middle, Title; e,g. Smith, John Alan Jr,5. When obligation has been satisfied, complete the Termination Statement and return the original to the filing officer.
Mail to: Secretary of State, UCC Division, 700 W Jefferson, PO Box 83720, Boise, ID 83720-0080. Ph 208-334-3191
Debtor #1 (Last name, first, middle, title & mailing address) Debtor #3
Customer account number/)
/c".)(.l :t
~? '
,0;" i1'
/\
o. ,J u v, \
Fulcrum Inc
13219 Ne 20
Suite 206
Bellevue, WA 98005
(A transmitting Utility
Debtor #2 Debtor #4
Secured Party and Address Assignee and Address
Idaho Power Company
POBox 70
Boise, Idaho 83707
SEE ATTACHED FOR DETAILS
Check if Covered LXI Products of Collateral are also covered
If one of the following boxes is checked, the secured party may sign
the financing statement. The collateral described herein is:
Brought into this state already subject to a security interest in
another jurisdiction
Subject to a security interest in another jurisdiction, and the
debtor's location has changed to this state.
Proceeds of the original collateral described below in which a
security interest was perfected.
(iJ The subject of a financing statement which has lapsed.
Subject to a security interest perfected under a prior name or
identity of the debtor.
Mailing Name and Address for acknowledgment" if not Secured Party
This financing statement covers the following types or items of property:
(If this is a fixture, timber or mineral filing to be recorded with the County Recorder, include legal description and name of record owner if required.
See Exhibit A attached hereto and made a part hereof.
Signature(s) of Debtor(s).Filing Office Use Only
...............
IDAHO SECRETARY OF STATE
89/16/1999 09:08
CK: 874187 CT: 28&3 IN. 251411
1 8 6.88 = 6.88 UCC1 FILE I 1642' 1.88 = 42.88 ATTACH.
Secured Party Signature
Darrel T Anderson, Vice President - Finance and Treasurer
v1INATION STATEMENT - The Secured Party no longer claims a security interest
under the financing statement.Filing Nuber: B 848108
Secured Party or Assignee of Record Date
SEE ATiACHED FOR
DEi AILS
Debtors:
Secured Party:
EXHIB IT A
UCC-l FINANCING STATEMENT
Fulcrum, Inc.
Idaho Power Company
This financing statement covers the following types or items of property:
All of the estate, right, title and interest of the Debtors in, to and under the
following:
...........-
all of the buildings, structures and improvements now standing or at any
time hereafter constructed or placed upon the lands described below;
all transmission line, cables metering, devices, generators, switchgears
transfonners, electrical equipment, turbines, all equipment which includes
but is not limited to the equipment list described below and all of the
fixtures and personal property now or hereafter located in or on, or used or
intended to be used in connection with the hydroelectric power plant know
as the Barber Dam Hydroelectric Project in Ada County, Idaho (the
Project") constructed on the lands described below;
all hereditaments, easements, appurtenances, riparian rights, rents, issues
profits, condemnation awards, mineral rights and water rights now or
hereafter belonging or in any way pertaining to the lands described below
or to the Project, excepting, however, any water pennits issued to Debtors;
and
all franchises, rights, consents, powers, privileges, licenses, pennits
contracts, grants, immunities and concessions of any kind, nature and
description whatsoever of or belonging to the Debtor, whether based upon
any legislative act or grant of The United States of America or of the
State of Idaho or of any political subdivision or agency thereof, or whether
granted by any private person or body corporate, or
. oE.~~\\-SfO~
~~~~
c.c:,
~ ~' ,. '
howsoever otherwise conferred or granted, includingwithout limitation:
(i) the license issued by the Federal Energy
Regulatory Commission, dated December 23, 1983, asamended, to Ada County and Fulcrum, Inc. for the
cons truc tion , ope rat ion and maintenance 0 f theProject,
(ii) the Firm Energy Sales Agreement, datedJuly 13, 1987 between Interwest Hydro, Inc. andIdaho Pewer Company, as assigned to Fulcrum, Inc.by Assignment Agreements dated May 13, 1988, andconsented to by Idaho Power Company by letter
dated June 7, 1988,
(iii) the Construction Contract dated March 1, 1988between Fulcrum, Inc. and Sumrni t ConstructionCompany, and
(iv) the Contract Acknowledgment dated April
1987 between Bonneville Pacific Corportion,
Interwest Financial and Voi th Hydro , Inc.
The equipment list referred to in Section 1 (b) includesbut is not limited to the followina:
...
( a)Two (2) 26.5 Horiz ontal Kaplan S-Turbines wi adjustable wicket gates and runner blades.
(b)Two (2) horizontal synchronous genera tors brushlessexci te~, connected via speed increasers to theturbine. The generator has the followingcharacteristics and equipment:
Rating 2100 kW, 720 RPM, open drip-proof, 3 phase,60 Hz, 4160 volts, 10So C rise by RTD over 40Oambient, 0.95 PF, class F VPI insulation, oversize
terminal box with 3 CT' s for differential, 1 CTfor excitation, surge capacitors, lightningarrestors, neu tral grounding trans former andresistor, space heaters , exci tation system stator
...
and bearing RTD 's, standard routine factory ~ests
plus overspeed test and efficiency test.
( c)Two (2) parallel shaft speed increasers absorbing
2100 kW , input speed 145.64 RPM , output speed 720RPM, B-10 life to exceed 100 000 hrs. and aminimum AGHA service factor of 1.
I terns A, B , & C Price US - $2 817,500.
( d)Controls and Switchgear.
Item D Price 330,000.
(e)
fOR DE,.~\lS
SEE ~TT"CHEO
Atlas Polar Rake and transport system.
Item E Price 75,000.
TOTF.L PRICE 222 500.
3 .The lands referred to in Section 1 (A) and (B) arelocated in Ada County, Sta te of Idaho and are legallydescribed as follows:
~RCEL A
A tract of . land located in part of Government Lot ~, Sec t ion29 and part of Governr:lent Lot 2,. Section 32, Township 3 ~orth,Range 3 East, Boise Meridian, in Ada County, Idaho, (;loreparticular ly describe6 as follows:
l ,
Commencing at the section corner common to Sections ~9, 30, and 3~, Township 3 Xorth, Range 3 East, B~M., Ada County , Idaho:~hence South 89 degrees 00' 59" East a distance of 2639. ~6feet along the southerly boundary of said Section 29 1.0 t:h~Southwest corner of said SE 1/4 of Section 29;thence North 76 degrees 07' 11" East a distance of 261.feet to a point on the Southerly bank of the Boise Riv~r Andthe T ~ue Po in t of Beg inning;thence ~orth 33 degrees 23 r 41" East a distance of 566 .17 f(~etacross the 3oise River;thence South 47 degrees 27' 00" East a distance of 79. GO feet;thence ~orth 30 degrees 07' 16" East a distance of 94. 87 f~et;thence South 65 degrees 09' 03" East a distance of 81. ~9 fe~t;thence South 51 degrees 23' 56" East a distance of 580.60 feet;thence South 47 degrees 24' 40" West a distance of 748.38 feetacr~ss the Boise River to a point on the Souther 1 y ba nk C) said river;
thence ~orth 41 degrees 12 f 00" West a distance of 399.feet along the southerly bank of the Boise Riv~r;th~nce ~orth 51 degrees 57 f 00" t-vest a distance of 1()5...+0feet along the Southerly bank of the Boise River to th~TReE POIXT OF BEGINNI~G.
..-~ -
SEE ATTACHED FOR DETAILS
PARCEL B
An easement for the purpose of ingress and egress over d
~trip of land 33.00 feet in width located in the South~~stQuarter of Section 29, Township 3 ~orth, Range 3 East. GI)i.seMeridian, in Ada County, Idaho, more ~articularlv deS(:rlb~cj
..
as follows:
Commencing at the section corner common to Sections ~9, 30,31 and 32~ Township 3 North, Range 3 East, 8.. Ada County,Idaho;
THENCE South 89 degrees 00'59" East a distance of 2639.
feet along the Southerly boundary of said Sec~ions' 29 to theSouthwest corner of said SE 1/4 of Section 29;thence North 76 degrees 07' II" East a distance of 261.feet to. a point on the Southerly bank of the Boise River;thence North 33 degrees 23' 41" East a distance of 566.1 7feet across the Boise River;
thence South 47 degrees 27' 00" East a distance of 79.feet;
thence North 30 degrees 07' 16" East a distance of 94.feet;
1..'
::.::.
thence South 65 degrees 09' 03" East a distance of 81. ~9feet;
thence South 51 degrees 23' 56" East a distance of 164. 04feet to the Southwest corner of said access easement and the
TRUE POI~T OF 3EGI~NI~G;
thence North 42 degrees 41'46" East a distance of 500.feet;
thence ~orth 38 degrees 46' 00" East afeet to the Southeaster 1 y boundary of
thence South 31 degrees 15' 39" East a
feet along the Southeasterly boundary
thence South 38 degrees 46' 00" West afeet;
thence 42 degrees 41' 46" West a distance of ~98. 80 fe~tto the ~ortheasterly boundary of the ~bove described tr~(~t;thence North 51 degrees ~3'56" tvest a distance of 33.feet to the TRUE POI~T OF BEGI~XrXG.
distance of 1620.
State Highway ~o. ~ 1 ;
distance of 33.
of State Highway ~o. 21;distance of 1621.
...:....-" .,
SEE ATTACHED FOR DETAILS
~RCEL C
An easement for th~ sale purpose of constructing, operating
and ~aintaining a hydro electric production facility at theBarbe= Darn site in Ada County, which shall include use ofsaid premises to the extent necessary as a pool or ~eservoirfor the backwaters upstream from the darn site at the Project,which lie at or below a maximum level of approximately ~, 777feet.\.;ith a perI:'lissable variation of 0.25 feet above that l~vp.l;Creat~d by an instrument entitled Easecent Agree~ent, recordedJuly 7, 1988 as Instrument No. 8833012, official records of Ad~County, covering the following described lands:
A parcel of land being portions of the S 1/2 of the SW 1/4of Section 28, S 1/2 of the SE 1/4 of Section 29. and ~E 1/4of Section 32 and Section 33, all in T. 3 N., R. 3 E.,M., Ada County, Idaho, and more particularly describedas follo\oJs:
~ -
Beginning at an iron pin Qarking the Northwest corner ofthe said sw 1/4 of Section 28;thence South 0 degrees 30' 59" West 1,724.47 feet (formerl ydescribed as 1,700.00 feet) along the Westerly boundary ofthe said sw 1/4 of Section 28 to ~n aluminum cap, also5aid point being the REAL POINT OF BEGI~NI~G;thence South 82 degrees 56 r 36" East 300.16 feet to analuminum cap;
thence North 51 degrees 03'24" East 105.00 feet to analuminum cap;
thence North 83 degrees 23'24" East 379.00 feet to analuminum cap;
thence South 85 degrees 06' 36" East 216.00 feet to analuminum cap;
thence South 62 degrees 36' 36" East 207.00 feet to anal uminum cap;
thence North 89 degrees 38'2~" ,East 146.81 feet to. alead plug and tack on the Easterly boundary of GovernmentLot 2 of the said sw 1/4 of Section 28;
the n c e SOU th O de g r e e s 4 8 ' 4 9" t~ est 3 6 9 . 5 5 fee t alon 9a certain existing fence ine to an alurninu~ cap;
thence Xorth 83 de'lrees 01' 08" t'iest 1, :?97. ~6 fe ~t alonga certain existing fence 1 in~ to an al urninum cap;thence South 0 degrees 24' 47" t\~st 294.00 feet .:tlonqa cert2in existing fence line to an aluminuI!1 c;,p onthe :\ortheasterly I'Jeander line of the Boise Riv~rsaid !:=,oint hears South 0 degrees 13' 30" h'e::)t 2,270. ~lfeet fror.1 the sdid Xorth\v~st (;ornc~r or the St-J 1./4 Section :!8;
...
Cuntinued on ~ext page
thence Southeasterly along the said Northeasterly ~eanderline of the Boise River to an aluminum cap, said pointbears South 34 degrees 27' 20" East 4,799.'+8 feet fro~the Northwest corner of the sw 1/4 of Section ~8:North 2 degrees 37'00" \vest ('21.27 feet alQng ,:rt~c\-\EO fa certain exis~ing fence ine ~Q an a urninurn cap on th,~t.t. p; I~es ter 1 v r ~Qnt-or-wav ~ne or the Pen~ ten t iarv Cdl1;d;thence ~out~easterlv along the said Westerly ~ight-uf-wavine of the ?eniten~iary Cana I the fall owin~ co ~rs~~ and distances:
Soutb 46 degrees 32'52" East 211.77 feet to ~na 1 urn i n urn cap;
thence South 66 degrees 58' 15" East 144.63 feet an alurninuI:1 cap;
thence South 59 degrees 01' 16" East 1 03 .85 feet an alurninuI:1 cap;
thence South 59 degrees ~1' 59" East 287.37 feet tt)an a urninurJ cap;
thence South 53 degrees 10' 53" East 116.56 feet an al uminum cap;
thence South 39 degree~ 10'11" East 107.37 feet an alurn.?-.num cap;
thence South 46 degrees 25' 31" East 191.59 feet an al uminurn cap;
thence South 38 degrees 25' ~2" East 85.68 feet an aluminum cap;
thence South 18 degrees 41' 30" East 207.08 feet an al uminum cap;
thence South 19 degrees 36' 20" East 90.43 feet an alurninurn cap;
thence South 5 degrees 45 30" East 221.54 feet an a urninum cap;
thence South 1 deg ree 17' 35" t"iest 3 6 0 . 61 feet an aluminum cap;
thence South 5 degrees 12' 25" t-vest 307.54 feet an aluminum cap;
thence South 9 degrees 37'47" ~vest 332.21 feet an a 1 uminurL1 cap;
the n c e SOlI t h 7 de 9 r e e s ~ -t ' 4 1" tv est 6. 3 7 fee t to ..1 naluminum cae on the Southerly boundary
of the ~E 1/4
- -
of the said Section 33, which bears ~orth 88 deg ree~52' 07 II toJest 1,.4 93.97 feet along the .said Southe r.l yboundary of the ~E 1/4 of Section 33 from d brass capmarking the Southeast corner of the said NE 1/4 ofSection 33;the nee ~ 0 r t h 3 8 d (= 9 r e e ~ 5::2' 0 7 I, tv est 4 8 7 . 2 G fee t: :;11 n n ~Ithe said Southerly bounuary
of th(~ ~E l/~ of SI~t;tion 33to a n a 1 tJ 1:1 i n u m ea p. 0 n th e E a s t e r 1 en e and e r 1 i n e
()
1.11 t"B 0 i ~ e R .i v A' r, S did poi n t be a r s Sou t h 3 1. d e 'Jt" P- ~ S 0 () , 3 a" F. rl S 170.12 feet from the said :-~orth\"est c;ornr:"r of the 1/4-of S'~r.tion 18;
....
Con t i nl1ed on ne x t I.XHje
SEE ATTACHED FOR DETAILS
the=e continuing ~rth 88 degrees 52' 07. ~st along thesaid Southerly boundary of the ~E 1/4 of Section 33 to ~point on the Westerl y ceander ine of the said Bo ise H iv~ ~;thence Southerly along t~e said Westerly meanderine of the Boise River to a brass cap on the Southe t.l vboundary of the SE 1/4 of the said Se ;tion 33, said point bears South 23 degrees :;11 30" East 8 612.l0 fe~t"froI!l the said :\orthwesr. corner of the S\~ 1/4 of Section 28;thence North 87 degrees 291 09" West 434.96 feet ~lunq ::hesaid 'Southerly boundary of
the SE 1J4 of Section JJ :~(J :~llaluminum cap, which bea rs South 87 deg rees 291 09" ~d 535.26 feet along the said Southerly boundary of the SE 1.' ~of Section 33 from a stone monument marking the Southw~stcorner of the said SE 1/4 of Section 33;thence North 57 degrees 271 51" West 381.17 feet to ~na lurninum cap;
thence North 42 degrees 071 08" tvest 302.33 feet to allaluminum cap on the Westerly boundary of the said S2 l/~of Section 33;
thence North 1 degree 301 03" East 891.71 feet along thesaid Westerly boundary of the SE 1/4 of Section 33 to ~n~luminum cap marking the Southeast corner of Governr:1f-!IItLot 8 of the SW 1/4 of the sa id Section 33;thence North 89 degrees 29'56" West 953.02 feet .=.ilony theSoutherl1' boundary of the said Governr:tent Lot a 0C Lh~SW 1/4 of Section 33 to an al urninum cap on ine14. o~ feet Northeasterly of the ~ortheasterly toe 0 slope of the New York Canal;thence North 40 degrees 21 r 55" h'est 65.00 feet a10n9a line 14.00 feet Nor~heasterlv of the said Northeasl~rlvtoe of slope of the New York Canal to an aluminum Cd~;thence North 48 degrees 531 35" West 132.27 feet alonga line 14.00 feet Northeasterly of the Northeasterly
toe of slope of the New York Canal to an aluminu~ Cd?;thence North 50 degrees 17":;0" tvest 495.58 feet alonlJ ..:lline 14.00 feet Northeasterly of the said Northeasterlytoe of slope of the New York Canal to an aluminum cap;the nee No r t. h 5 7 de g r e e s 3 6 r
:?
2" t V est 1 0 2 . 81 fee t alon 9 .iline 14.00 feet Northeasterlv of the said Northeasterlytoe of slope of the New York Canal to an aluminum ca8;thence North 37 de~1rees 11 'OS" t'i~st 360.28 feet t.o analuminum cap;
thence North 37 degrees 01' 09" tvest 49..3.50 feet to ..inaluminum cap;
thence North 68 degrees 411 09" t'Jest 593.50 feet to ..H1aluminum cap;
thence ~orth 88 d~grees lU'ng" h.~t 351.33 teet to ..alul:1inuc:1 cao on a line l~.OO feet ~ort:heast~rlv of Lhc...sa id :\0 r the ; s te toe of s npe 0 1: he Ne\. '( .n-k Cd n.! I ;thence along line 14. 00 f(~et ~orthc.:a~terlv of Lh,~ s.LidXortheast~r y toe of s loGJe of thA ~e\v York Z7:in.1 I thefo 11 OI.\lCV;j cou r~c~~ .dlC~ d is ta flees:
('onl" i nJJf~d nn nc~xt 2"'J~
SEE ATTACHED FOR DETAILS
. ,".--
Nor t h 5 9 de g r e e s 3 7 ' a 0" We s t 6 2 . 5 8 fee t to a n a 1 urn i n u m ea p ;the n c e Nor t h 6 0 de g r e e s 0 3 ' 44" t-J est 2 4 4 . 7 1 fee t to a aluminum caF;
thence North 50 degrees 33' 39" West 204.48 feet to dnaluminum caE=';
thence North 64 degrees 11' 09" t-iest 128.06 feet tCI .aluminum cap;
thence North 31 degrees 42' 07" West 152.04 feet to ana 1 urn i n UI':\ caE?;thenc'e North 46 degrees 14' 23" t'iest 595.37 feet to dna 1 umi nurn ca?;
thence leaving a line 14.00 feet ~ortheasterly of thesaid Northeasterly toe of slope of the New York CanalNorth 0 degrees 40'21" West 151.91 feet to dn aluminum cap;
thence North 0 degrees 18' 57" West 130.02 feet to dnaluminum cap;
thence North 8 degrees 31' 51" West 217.57 feet to dnaluminum cap;
thence ~orth 20 degrees 19'21" West 128.80 feet to ~naluminum cap;
thence North 12 degrees 42'57" East 118.56 feet to Inal uminum cap;
the n c e Nor t h 2 7 de g r e e s 3 8 ' 3 6" We s t 1 4 0 . 8 7 fee t to ..1 naluminum caE?;the n c e Nor t h 1 8 d e g r e e s 0 4 ' a 5" ~OJ est 2 8 2 . 1 9 fee t to ..1 naluminum cap;
thence North 34 degrees 11' 09" t-vest 136.40 feet to analuminum cap;
thence North 37 degrees 06' 42" West, 104.14 'feet to ana 1 urninurJ caE=';
thence North 44 degrees 20' 58" toJest, 72.92 feet to analuminum cap;
thence North 31 degrees 12' 23" tv est, 123.09 feet to ."3.naluminum cap;
said point bears South 83 degrees 15' 37"
East 3,326.78 feet fiom
Northwest corner of th~
thence ~orth 47 degrees
to an aluminum cap;thence South 68 degree~aluminum cap;
thence South UB JegreesaluminuI:1 cap;
thence South 38 deg re~~
Ciluminllr71 cap;tht~nC'e Xorth 39 c.I(~gree~
brass cap marking thesaid Section 32;49'15" East 1,2G~.
()()
feet
....
47'35"Ea~t 73.5-l f (~e t "\n
56'06"E':lSt 74.((~~ t
Esat 128.r (~e t
~ -
d 11
19'0)"Ea ~ t 439.(e~t c.i n
Ccntinued en ncxt pcJge
SEE ATTACHED FOR DETAILS
a 1 UI:1inurn cap;
thence ~orth 82 degrees 24'19" East 419.24 feet to anal uminurn cap;
thence South 82 degrees 56'36" East 183;84 feet to th~
point of beginning.
EXCEPT any portion conta ined in a Deed to Ada ' County, reCf) reedAugust 11. 1986 as Instrument Ko. 8646168. records
of Ada County,Idaho.
the~ wi ~h all substitutions and replacements for an productsoge
and proceeds of any of the forego1ng proper
~ .....-------'(,
EXHIBIT A
fOR QE.1~\lS
S .
. -
\~t1'~CHEO
891156'
. _. , -
COMBINATION SECOND MORTGAGE,
AND FIXTURE FINANCI'
, -., ;' ~-
Th; s Comb; nati on Second Mortgage Secur; ty .ent and Fixture
Fi nanci ng Statement qated as of th is 22nd day of December , 1988 is made
between Fulcrum , Inc , an Idaho corporation (Mortgagor ) and Idaho Power Company
Mortgagee ) and Bonneville Pacific Corporation , a Delaware corporation , as
Debtor (for fixture fi 1 i ng purposes).
RECITALS
By Ass i gnment Agreement dated May 13 1988 Mortgagor and
Mortgagee entered into a Fi rm Energy Sal es Agreement dated July 13 , 1987 (the
Agreement") whereunder , in accordance with the terms and conditions thereof
Mortgagor agreed to sell and Mortgagee agreed to buy certain electrical power
generated by Mortgagor hydroelectric generating project located , in Ada
County, Idaho (the "Project"), which Agreement was approved by the Idaho Public
Utilities Commission (the "Commission ) on July 27, 1987 , Order No 21360.
or about September 20 , 1988 , Mortgagor and Mortgagee entered into a First
Amendment to Firm Energy Sales Agreement (the "First Amendment"), which First
Amendment was approved by the Commi ss i on on or about September 20 , 1988 , and
requ; res among other thi ngs , that Mortgagor grant a second 1 i en securi ty
interest in and to its rights , titles and interests in the Project as security
for the 1 i qui dated damage amounts to be pai d to Mortgagee by Mortgagor under
the Agreement.The Agreement and the Fi rst Amendment are sometimes
collectively referred to as lithe Agreementll
Mortgagor has previ ous ly entered into certain contractual
. .-
arrangements with Norwest Bank Minnesota , National Association , Marquette Bank
fOR OE1~\LS
SEE. ~T\~C\-\E.O
Minneapolis , N A , First Security Bank of Utah , N A , and Ranier National Bank
(together the "Banks ), and Norwest Bank Minnesota National Association
Agent for the Banks and has granted to sai d Agent and the Banks a fi rst 1 i en
security interest in and to all of the Mortgagor s rights , titles and interests
in the Project.
Ada County, State of Idaho , and Interwest Hydro , Inc , entered
into a Lease -- Agreement No 627 (the II Lease ), pursuant to whi ch Ada County
granted to Interwest Hydro , Inc , the right to possess , enter upon , occupy and
use the lands more particularly described as Parcel A in Exhibit "A" that are
owned by Ada County in connection with the construction , operation and mainte-
nance of the Proj ect.The Lease through rat i fi cat i on was recorded in the
offi ce of the Ada County, Idaho Recorder on June 15 , 1988 , as Instrument
No 8829081.The Lease was subsequently ass i gned wi th the acknowl edgement and
consent of Ada County to Mortgagor by that certain Assignment of Lease 'dated
June 27 , 1988 , and recorded in the offi ce of the Ada County, Idaho , Recorder on
July 20 , 1988 , as Instrument No 8835675.
Pursuant to an Acces s Agreell!ent and Grant, of Easement dated
September 21, 1987 , entered ; nto between Da 11 as H Harri and A ta Harri s ,
husband and wife, as grantors, and Mortgagor , as grantee, as amended pursuant
to an Amendment dated August 2, 1988 (the "Access E~sem~nt"), said Dallas H
Harri s and A1 ta Harri s granted to Mortgagor certai n easements wi th respect to
access over and across real property described as Parcel B in Exhibit II The
Access Easement was recorded ; n the offi ce of the Ada County, Idaho , Recorder
on December 22 , 1987 , as Instrument No 8769596 and the Amendment thereto was
..:..:.- recorded in the off; ce of the Ada County, Idaho Recorded as Instrument
No 88-38074.
-2-
OR OE1~\\..S
. SEE fl,.1ifl,.CHEO
Pursuant to an Easement Agreement dated June 27 , 1988 , between
Idaho Foundati on for Parks and lands, an Idaho corporati on and Mortgagor (the
81 Parks Easementll
) ,
sai d Idaho Foundati on for Parks and lands granted to
Mortgagor the right to possess , use, occupy and enter upon certain real pro-
perty located in the State of Idaho and more particularly described as Parcel C
in Exhibit IIAII The Parks Easement was recorded at the offi ce of the Ada
County,Idaho
Idaho i favor
Recorder on July 7 , 1988 , as Instrumerit No 8833012.
Pursuant to a Temporary Permit No 1962 issued by the State of
of Mortgagor dated June 29 , 1988 , the State of Idaho has granted
to Mortgagor certai n ri ghts to enter upon , occupy and use real property owned
by the State of Idaho lyi ng beneath the hi ghw ater mark on the real property
described as Parcel A and Parcel C of Exhibit II A" (the "State Permit"
connection with the construction , operation and maintenance of the Project.
The State Permi t was recorded i n the offi ce of the Ada County, Idaho , Recorder
on July 7 , 1988 , as Instrument No 8833011.
As a requi rement of the Fi rst Amendment and the orders of the
Idaho Public Utilities Commission , Mortgagor is executing this Mortgage for the
purpose of securi ng repayment of the 1 i qui dated damages. art sing out of the
overpayment 1 i abi 1 iti es described and set forth i n the Agreement and the orders
of the Commission.The maturity date of thi s Combi nati on Second Mortgage
determined by the Agreement which is on file with the Commission and available
for pub 1 i c i nspecti on at the Commi ss ion.
Accordi ngly, to secure (a) the repayment of the 1 i qui dated damag~s
and (b) the performance and observance of all of the covenants and agreements
.-:.\....
of Mortgagor herein contained , the Mortgagor does hereby grant a security
, '
interest to the Mortgagee and hereby mortgages, grants , bargains sell s
-3-
R OE\~\\..S
S'C'C i'-1ii'-C\-\'CO
assigns , transfers and conveys to the Mortgagee , with power of sale , subject
only to the rights of the Banks set out in the first lien instruments described
in Exhibit B hereto all of the estate , right , title and interest of the
Mortgagor in , to and under the following described property:
(a)
(b)
the Lease;
the Access Easement and the Parks Easement (collectively the
II Eas ements II
) ;
(c)
(d)
the State Permi t;
all of the bui 1 di ngs, structures and other improvements now
standing or at any time hereafter constructed or placed upon the Easements;
(e)all transmission lines , cables , metering devices , generators
switchgears , transformers , electrical equipment , turbine and all other fixtures
and- personal property now or herea fte r located in or on , or used or intended to
be used in connection with the Easements or the Project (collectively the
II Equi pmentll
) ;
(f)all heredi taments , easements , appurtenances ri pari an ri ghts ,
rents , issues , profi ts , condemnati on awards J mi neral ri ghts and water ri ghts
now or hereafter belonging or in any way pertaining to the Easements or to the
Project , including but not limited to Mortgagor s right , title and interest in
water rights granted under App 1 i cati ons to Appropriate Water Nos 01- 7058 and
01-7022 filed with the Department of Water Resources of the State of Idaho and
the permits approving such applications respectively dated April 26 , 1988 , and
Apri 1 15 , 1984; and
(g)
all franchi ses , ri ghts, consents , powers , pri vi 1 eges , 1 i Gens es ,
~ permits , contracts , grants, immunities and concessions of any kind , nature and
~ .
descript i on whatsoever of or bel ongi ng to the Mortgagor , whether based upon any
-4-
SEE ATTACHED FOR DEiA.\LS
egi slat; ve act or grant of The Uni ted States of Ameri ca or of the State of
Idaho or of any pol; ti cal subdi vi s i on or agency thereof , or whether granted by
any pri vate person or body corporate , or howsoever otherw; se conferred or
granted , including without limitation
(i)the 1; cense i ssued by the Federal Energy Regul atory Com-
mi ssi on , dated December 23 , 1983, as amended , to Ada County and the Mortgagor
for the constructi on , operat; on and mai ntenance of the Project
(ii )the Fi rm Energy Sales Agreement dated July 13 , 1987
between Interwest Hydro , Ioc , and Idaho Power Company as ass i gned to Mortgagor
by Assi gnment Agreements dated May 13 , 1988 , and consented to by Idaho Power
Company by etter dated June 7, 1988 , and
(ii;)the Construction Contract dated March 1 , 1988 between
, Mortgagor" 'arid Summit Construct; on Company (all of the forego; ng, together with
the Easements be; ng here; nafter referred to as the II Mortgaged Property
(h)the amounts i n the maintenance escrow account and the low water
insurance reserve account descri bed in the Fi rst Amendment to the Agreement
(i)all and any different and additional rights of any nature , of
value or convenience and enjoyment , development , operation or production, and
any wi se , of any property or i nterest i ncl uded in any of the foregoi ng cl auses
and in all revenues , income , rents , issues , profits and other benefits arising
therefrom or from any contract now in exi stence or hereafter entered into
pertaining thereto (all of the foregoing, together with the Easements, being
herei nafter referred to as the II Mortgaged Property
To Have and To Hol d the Mortgaged Property unto the Mortgagee and its
"';\.0-successors and assigns forever; provided , nevertheless , that this Mortgage
, .
upon the express condition that if the Mortgagor shall complete its obligations
-5-
EO FOR QE1J\\LS
SEE ~11J\CH
under the Agreement and shall also keep and perform each and every covenant and
agreement of Mortgagor herei contai ned then thi s Mortgage and the estate
hereby granted shall cease and be vo i d and shall be re eased of record at the
expense of the Mortgagor; otherwise this Mortgage shall be and remain in full
force and effect.
The Mortgagor represents, warrants and covenants to and wi th the
Mortgagee that it is vested with the right to enter upon , occupy and use the
Easements in connection with the construction , operation and maintenance of the
Project , that is has and will have good title to the Equipment (other than any
Equi pment in whi ch Mortgagor has any ri ghts or i nterests owned by Mortgagee
that is referred to i n the Agreement) and all of the bui 1 di ngs , structures and
other improvements now standing or at any time hereafter constructed or placed
. "
;' upon the Easements and that it has " full power and authori ty under all
applicable provisions of law and under its articles of incorporation and
by-l aws to execute thi s Mortgage and to convey the Mortgaged Property; that the
Mortgaged Property is free from all 1 i ens , security interests and encumbrances
except as listed in Exhibit B attached hereto; that the Mortgagor will warrant
and defend the title to the Mortgaged Property owned by it and the lien and
priority of this Mortgage against all claims and demands of all persons whom-
soever , whether now existing or hereafter arising, not listed in Exhibit
The covenants "and warranties of this paragraph shall survive foreclosure of
th i s Mo rtgage .
The Mortgagor further covenants and agrees as fo 11 ows:
1 i ance wi th Agreement Mortgagor wi 11 duly and punctually
perform all obl igations under the Agreement as amended by the First Amendment.
-6-
- .,'.
HEO fOR
OEiP-\L5
6r.E ~T\f.\C
2. Payment of Taxes , Assessments and Other Charg~Subject
paragraph 5 relating to contests the Mortgagor shall pay before a penalty
mi ght attach for nonpayment thereof , all taxes and assessments and all other
charges whatsoever evi ed upon or assessed or pl aced agai nst the Mortgaged
Property, except that assessments may be paid in installments so long as no
fine or penalty ;s added to any installment for the nonpayment thereof.
Mortgagor shall likewise pay all taxes , assessments and other charges , levied
upon or assessed , placed or made ~ga; nst , or measured by, thi s Mortgage , or the
recordat i on hereof.In the event of any ,legislative action or judicial
deci s i on after the date of thi s Mortgage , i mpos i ng upon the Mortgagee the
ob 1 i gat i on to pay any such taxes , assessments or other charges , or deducting
the amount secured by thi s Mortgage from the value of the Mortgaged Property
for the purpose of taxati on of mortgages , deeds of trust or debts secured
, .,-~
thereby, or the manner of the operation of any such taxes so as to affect the
interest of the Mortgagee , then, and i n such event , the Mortgagor shall bear
and pay the full amount of such taxes , assessments or other charges.Mortgagor
shall promptly furnish to the Mortgagee all notices received by the Mortgagor
of amounts due under thi s paragraph and Mortgagor shall promptly furni sh to
Mortgagee recei pts ev; denc; ng such payments.Nothing. in this Mortgage shall be
construed as requi ri ng Mortgagor to pay any net income , profits or revenue
taxes of Mortgagee.
Liens.Subject to paragraph 5 hereof re ati ng to contests , and
subject to paragraph 4.1 of the First Amendment , the Mortgagor shall not
, create ; ncur or suffer to ex; st any 1; en encumbrance or charge on the
--
Mortgaged Property or any part thereof which might or could be held to be equal
\.,~- .
or pri or to the 1 i en of thi s Mortgage , other than the 1 i en of current real
-7-
E Jl,,1\I\CHED FOR
DEil\\LS
,",__
estate taxes and installments of special assessments with respect to which no
pena 1 ty is yet payab 1 e and those 1 i ens and encumbrances referred to
Exhi bi t B hereto.Mortgagor shall pay, when due , the claims of all persons
supplying labor or materials to or in connection with the Project.
1 i ance wi th Laws Subj ect paragraph relating
contests , Mortgagor shall comply with all present and future statutes , laws
rules orders regul at; ons and ordi nances affecti ng the Project or the
operat; on thereof.
Permi tted Contests.The Mortgagor shall not be required to (i)
pay any tax , assessment or other charge referred to i n paragraph 2 hereof , (i
di scharge or remove any 1 i en , encumbrance or charge referred to in paragraph 3
hereof, or (iii) comply with any statute , law , rule , regulation or ordinance
referred to in paragraph 4 hereof , so long as Mortgagor shall (a) contest , in
good faith the exi stence
, "
amount or the val i di ty thereof the amount of
damages caused thereby or the extent of its 1 i abi 1 ity therefor , by appropri ate
proceedi ngs whi ch shall operate dur; ng the pendency thereof to prevent (A) the
collection of , or other realization upon the tax, assessment , charge , lien
encumbrance so contested , (B) the sale , forfeiture or loss of the Mortgaged
Property or any part thereof , and (C) any i nterference wi th the operation of
the Project , and (b) shall give to Mortgagee :to insure compliance wiht the
foregoing provisions of this paragraph 5 , a surety bond in an amount equal to
one and one-half times the amount in dispute , naming Mortgagee as obligee , or
shall provide other security acceptable to the Mortgagee , with a market value
equal to not less than one and one-half times the amount in dispute.Mortgagor
sha 11
, ..
-.0-
. ~.
gi ve prompt wri tten notice to Mortgagee of the commencement of any
contest referred to in thi 5 paragraph 5.Mortgagee shall determi ne, at its
-8-
OR OE.1~\lS
.__
~r. ~T\~CHEO f
so 1 e di scret i on , the adequacy of the securi ty requi red hereunder and the so 1 e
alternative to the furnishing thereof by Mortgagor shall be the immediate
payment di scharge or camp 1 i ance wi th the matter ; n questi on without contest
thereof.
Insurance.Mortgagor at its so 1 e cost and expense wi 11
ma i nta i n all ins urance coverages requi red under the Agreement and the Fi rst
Amendment.
Preservat i on and Maintenance of Mort~ed Property Mortgagor
(i) shall keep the bui 1 di ngs and other improvements now or hereafter erected on
the Easements i safe and good repai r and condi t ion , ordi nary depreci at ion
excepted; (i i) shall , upon damage to or destruction of the Mortgaged Property
or any part thereof by fire or other casualty, restore , repair , replace or
rebuild the Mortgaged Property that is damaged or destroyed to the condition it
was ; n immedi ate ly pri or to such damage or destructi on so as to produce energy
in the amount requi red by the Agreement and by no ater than the end of any
suspension of performance period permitted under the Agreement resulting from
such casualty, whether or not any insurance proceeds are sufficient for such
purpose; (iii) shall not commit waste or permit impairment or deterioration of
the bui 1 di ngs or other improvements now exi sti ng or hereafter located on the
Easements , or the Equipment or perm; t the Project to produce ess energy than
is required to be produced under the Agreement; (iv) shall not materially alter
the design or structural character of any building or other improvement now or
hereafter erected on the Easements without the prior written consent of the
Mortgagee , which consent shall not be unreasonably withheld; and (v) shall not
remove from the Project any of the Equipment unless the same is immediately
replaced with property of at least equal value and utility, and this Mortgage
-9-
fOR QE.1P-.\LS
'q--" '
SEE ~11~CHEO
becomes a valid first lien on such property or unless the same is obsolete or
worn out.
~ection The Mortgagee sha 11 have the ri ght at all reason-
able times after the date hereof to enter upon the Mortgaged Property for the
purposes of inspecting the Mortgaged Property or any part thereof.The
Mortgagee shall have no duty to make such inspection , and any inspection of the
Mortgaged Property or the operation of the Project shall be entirely for the
benefit of the inspecting party and the Mortgagor shall in no way rely thereon.
Protection of Mort~ee ' s Security Subj ect to the ri ghts of
the Mortgagor under paragraph 5 hereof , i f the Mortgagor fai 1 s to perform any
of the covenants and agreements contai ned in thi s Mortgage or if any act; on or
proceed; ng i s commenced wh; ch affects the Mortgaged Property or the i nterest of
the Mortgagee therein , or the title thereto , then " the Mortgagee , at Mortgagee
opt; on may perform such covenants and agreements defend agai nst and/or
investigate such action or proceedi ng, and take such other action as the
Mortgagee" deems ' necessary to protect the Mortgagee s interest.Mortgagee shall
be the sole judge of the legality, validity and priority of" any claim , lien
encumbrance , tax , assessment , charge and/or premium paid by it and the amount
necessary to be pai d in sati sfact i on thereof.Mortgagee is hereby gi ven the
irrevocable power of attorney (which power is coupled with an interest and is
irrevocable) to enter upon the" Mortgaged Property as the Mortgagor l s agent
the Mortgagor l s name to perform any and all covenants and agreements to be
performed by the Mortgagor as herei prov; ded.Any amounts or expenses d; s-
bursed or incurred by the Mortgagee pursuant to thi s paragraph 9 , with ; nterest
~ thereon , shall become additional obl i gations of the Mortgagor secured by this
, ".
Mortgage.Unless Mortgagor and Mortgagee agree in writing to other terms of
-10-
fOR OE1~\lS~~CHE.OHHO"SEr. f:t\
repayment , such amounts shall be immediately due and payable.Nothi ng con-
tained in this paragraph 9 shall require the Mortgagee to incur any expense or
do any act hereunder , and the Mortgagee shall not be liable to the Mortgagor
for any damages or claims arising out of action taken by the Mortgagee pursuant
to this paragraph
10.Condemnati on.
(a) Subj ect to the pri or ri ghts of the Banks , Mortgagor hereby
i rrevocab ly assi gns to the Mortgagee any award or payment whi ch becomes payab 1 e
by reason of any taki ng of the Mortgaged Property or any part thereof whether
directly or indirectly or temporarily or permanently, in or by condemnation or
other eminent domain proceedings (hereinafter called IITaking Forthwith upon
, '
receipt by , Mortgagor of notice of the institution of any proceeding or
e:.::.negotiations for a Taking, Mortgagor shall give notice thereof to Mortgagee.
Mortgagee may appear in any such proceedings and participate in any such
negotiations and may be represented by counsel.Mortgagor , notwi thstandi ng
that Mortgagee may not be a party to any such proceeding, will promptly give to
Mortgagee copies of all notices, pleadings , judgments , determinations and other
papers recei ved by Mortgagor therei Mortgagor wi 11 not enter into any
agreement permitti ng or consenti ng to the taki ng of, the Mortgaged Property or
any part thereof , or provi di ng for the conveyance thereof in 1 i eu of condem-
nation, with anyone authorized to acquire the same in condemnation or by
eminent domain unless Mortgagee shall first 'have consented thereto in writing.
All Taking awards shall be adjusted jointly by Mortgagor and Mortgagee.All
awards payable as a result' of a Taking shall be paid to Mortgagee , which shall
--
apply them after first deducting Mortgagee expenses incurred in the
, '
co 11 ect i on thereof , as fo 11 ows:
-11-
EE f\TTf\CHEO
fOR DEiMlS
;,.._...
(1)If the Taking involves a taking of any building or other
improvement now or hereafter located on the Easements , and if the awards
payable as a result of such Taking shall be less than $1,000 000 , the Mortgagee
shall pay over to Mortgagor such awards (after first deducting Mortgagee
expenses in the collection thereof) and Mortgagor shall hold the same as a
trust fund to be used for the payment of the entire cost incurred in connection
with the work referred to in subparagraph (b) below; provided however , that
(i) if any Event of Default (or event that but for the passing of time or the
giving of notice or both would be an Event of Default) shall exist at the time
such net awards are so to be pai d over to the Mortgagor , or (i i) i f Mortgagee
after consultation with Mortgagor , shall in its reasonable judgment determine
that the Mortgaged Property cannot be repaired or restored to substantially its
respecti ve si ze , type and character immedi ate ly pri or to such Taki ng so as to
produce energy i n the amount of any suspens i on of performance peri od permi tted
. under the Agreement resulting from such Taking, then Mortgagee may, at its
option , apply such net awards towards payment of the obligations of Mortgagor
to Mortgagee under the Agreement , if any.
(2)If the Taking involves a taking of any building or other
improvement now or hereafter located on the Easements and i f the awards payab 1 e
as a result of such Taking shall be $1,000 000 or more , the Mortgagee shall,
upon request of Mortgagor, app ly such awards (after fi rst deducti ng 'therefrom
Mortgagee expenses incurred in collecting the same) to the payment of the
costs ;n connection with the work referred to in subparagraph (b) below, but
di sbursement of such net awards shall be under such procedures and upon pre-
sentation of such evidence as the Mortgagee may in its discretion require;
; ."--' ,
proYi ded however , that (i) if any defaul t under the Agreement has occurred and
-12-
CHED FOR DE1J\\lSSEE AnA
has not been cured as provi ded in the Agreement at the time such net awards are
to be so disbursed , or (ii) if Mortgagee , after consultation with Mortgagor
shall in its reasonable judgment determine that the Mortgaged Property cannot
repaired or restored to substantially its respective size type and
character immediately prior to such Taking so as to produce energy in the
amount requi red by the Agreement and by no ater than the end of any suspens;
of performance per; od permi tted under the Agreement resul ti ng from such Taki ng,
then Mortgagee may, at i ts opti on , app ly such net awards towards payment of the
obligations of Mortgagor under the Agreement , if any.
(3)If the Taki ng does not ; nvo 1 ve a taki ng of any bui di ng or
improvement now or hereafter located on the Easements , and does not i nterrupt
the provi di ng of energy as requi red under the Agreement , then Mortgagee , if
',
requested ,by Mortgagor wi 11 pay over such net awards received by it
Mortgagor and Mortgagor shall be entitled to use such funds for such uses as it
desires; provided however that if any default under the Agreement has
occurred and has not been cured as provi ded in the Agreement at the time such
net awards are to to be pai d ov~r to Mortgagor , then Mortgagee may, at its
option , apply such net awards towards payment of the obligations of Mortgagor
under the Agreement.
(b)If the Taki ng i nvo 1 ves taki ng of any bui 1 di ng or other
improvement now or hereafter located on the Easements , Mortgagor shall proceed
with reasonable diligence , to demolish and remove any ruins and complete repair
or restoration of the Mortgaged Property as nearly as possible '. to its
respective size , type and character immediately prior to the Taking so as to
,.,. -
produce energy in the amount requi red by the Agreement and by the end of any
suspensi on of performance peri od permitted under the Agreement resul ti ng from
-13-
fOR DE1~\LS
SEE ~1\~CHEO
such Taking, whether or not the condemnation awards are available or adequate
to complete. such repair or restoration.Mortgagor shall promptly reimburse
Mortgagee upon demand for all of Mortgagee expenses (including reasonable
attorney s fees) incurred in the collection of awards and their disbursement in
accordance wi th thi s paragraph and all such expenses.
11.No Additi onal Fi nanc; ng Other than the 1 i en descri bed in Item
, Exhibit B hereto , and subject to paragraph 4.1 of the First Amendment
the Mortgagor shall not create or permit to be created or to remain any lien on
the Mortgaged Property or any part thereof.
12.Securi ty Interest Thi s Mortgage shall constitute a security
agreement wi th respect to (and the Mortgagor and Bonnevi 11 e hereby grant the
Mortgagee a security interest in) the Equipment and all other personal property
. .
i nc 1 uded the Mo rtgaged Property,as more speci fi cally descri bed
paragraph G of the granting clause beginning on page 3, hereof.The Mortgagor
wi 11 from time to time , at the request of the Mortgagee , execute any and all
fi nanci ng statements coveri ng the Equipment and such other personal property
(in a form 'satisfactory to the Mortgagee) which the Mortgagee may reasonably
cons i der necessary or appropri ate to perfect its securi ty interest.
13.Fixture Filing From the date of its recordi ng, thi s Mortgage
shall be effective as a financing statement filed as a fixture filing with
respect to all goods constituti ng part of the Equipment whi ch are or are to
become fixtures related to the real estate described in Exhibit A hereto.
this purpose , the following information is set forth:
For
,~".
-14-
Q~\~\~S~~o fO~
r .
~ ~\\~C
(a)Name and Address of Debtors:
Ful crum Inc
Bonnevi 11 e Paci fi c Corporati on
257 East 200 South, Sui te 800
Sa 1 t lake Ci ty, Utah 84111
(b)Name and Address of Secured Party:
Idaho Power Company
Box 70
Boi se , Idaho 83707
(c) Thi s document covers goods whi ch are or are to become
fi xtures.
14.Events of Defau1 Each of the fo 11 owi ng occurrences s hall
constitute an event of default hereunder (herein called an II Event of Defaultll
(a) Mortgagor or Bonnevi 11 e shall fai 1 duly to perform or
"'-.. ..
observe any covenants or agreements contai ned in thi s Mortgage and such fai ure
shall continue. for 60 days after written notice from Mortgagee;
(b)Executi on shall have been evi ed agai nst the Mortgaged
Property or any part thereof or any ien creditor l s suit to enforce a judgment
agai nst the Mortgaged Property or any part thereof shall have been brought and
(in either " case) shall continue unstayed and in effect for a period of more
than 60 days;
(c) One or more of the events of default specified under the
Agreement as amended shall occur and be continuing after applicable notice and
peri od for cure;
(d) An event of default , however defined , shall occur and be
continuing and shall not be cured within the applicable time per;od(s) under
any other mortgage , as s i gnment or s e cur; ty document affecting the Project or
any part thereof; or
- "
-15-
fO~ t)~\f'-\\..S
~~C~~OScc.~~ (e) The Mortgagor shall for any reason lose the benefit of one
or more of the Lease , the Easements, or the State Permi t , and such benefi ts are
not restored within 60 days of such loss.
15.Acceleration; Foreclosure Subject to the ri ghts of the Banks
upon the occurrence of any Event of Defaul t and at any time thereafter until
such Event of Defaul t is cured to the wri tten sat i sfact i on of Mortgagee , the
. Mortgagee may, at its opti on, exerc i se one or more of the fo 11 owi ng ri ghts and
remedies (and any other rights and remedies available to it):
(a)Mortgagee may,by wri tten notice to the Mortgagor 0
Bonneville , declare immediately due and payable all liquidated damage amounts
secured by thi s Mortgage , and the same shall thereupon be immedi ate ly due and
payable , without further notice or demand.
(b) Mortgagee shall have and may exercise with respect to the
Equipment and all . other personal property included in the Mortgaged Property
all the ri ghts and remedi es accorded upon defaul t to a secured party under the
Uni form Commerci a 1 Code , as i n effect in the State of Idaho.If noti ce to the
Mortgagor or Bonneville of intended disposition of such property is required by
law in particular instance such notice shall be deemed commercially
reasonable if given to Mortgagor or Bonneville' and the Banks (in the manner
specified in paragraph 22 hereof) at least 10 calendar days prior to the date
of intended disposition.Mortgagor shall pay on demand all costs and expenses
incurred by Mortgagee in exercising such rights and remedies, including without
limitation, reasonable attorney s fees and legal expens~s.
(c) The Mortgagee may foreclose the 1 i en of thi s Mortgage for
any obl igation due , whether by acceleration or otherwise , according to law.
" 0,
that event , the purchaser at a foreclosure sale may, curing any redemption
-16-
~\
~\\..S
. ~
1':.~f1..C~~O
fOv..
,_..
per; od allowed , make such repa; rs or a terat ions on the Mortgaged Property
conveyed at such sal e as may be reasonably necessary for the proper ope rat; on
care , preservat; on , protection and i nsuri ng thereof.Any sums so paid shall be
added to and become part of the amount requ; red to be paid for redemption from
such sale.In any sui t or proceedi ng to foreclose the 1 i en hereof , there shall
be allowed and included as additional obligations in the decree for sale , all
expendi tures and expenses whi ch may be pai d or incurred by or on behalf of
Mortgagee for reasonab 1 e attorney . s fees appra i ser . s fees out 1 ays for
documentary and expert evi dence J stenographer . s charges , pub 1 i cat i on costs , and
costs (which may be estimated as to items to be expended after entry of the
decree) of procuring all such abstracts of title , title searches and examina-
tions , title insurance policies , and similar data and assurances with respect
to titl e , as Mortgagee may deem reasonably necessary either to prosecute such
suit or to evidence to bidders at sales which may be had pursuant to such
decree , the true conditions of the title to or the value of the Mortgaged
Property.All expenditures and expenses of the nature in thi s paragraph
mentioned shall be immediately due and payable by the Mortgagor and secured by
the 1 i en of thi s Mortgage.The Mortgagor hereby covenants and agrees that it
will not at any time insist upon or plead or in any manner whatsoever claim or
take any advantage of , any stay, exemption or extension law or any so-called
Moratorium Law now or at any time hereafter in force , nor claim , take or
ins i st upon any benefi t or advantage of or from any 1 aw now or hereafter in
force provi di ng for the val uati on or apprai sement of the Mortgaged Property, or
any part thereof, pri or to any sale or sales thereof to be made pursuant to any
. \"....
----- provisions herein contained.
-~7-
\)~\~\\..S
."
~\) fO~
S~~ r;.\\p...C~
Cd) Mortgagee shall have the right and power ,. but shall not be
obligated to enter upon and take possession of any of the Mortgaged Property,
and to exclude the Mortgagor , and the Mortgagor s agents or servants , wholly
therefrom , and to hold, use admi ni ster , manage and operate the Mortgaged
Property.The Mortgagee may operate the same wi thout 1; ab i 1; ty or duty to the
Mortgagor in connection with such operations , except to use ordinary care in
the operati on of the Mortgaged Property, an~ the Mortgagee shall have the r; ght
recei ve all energy generated and transmitted by the Mortgaged Property, and
to operate the Mortgaged Property, and to exerci se every power ri ght and
privi ege of the Mortgagor wi th respect to the Mortgaged Property.
16.~l;cat;on of Proceeds of Sale The proceeds of any sale
. .
the Mortgaged Property or any part thereof or any interest therein shall be
appl i ed fi rst to the payment of the costs and expenses of sa1 e i ncl ud; ng but
not limited to reasonable attorney fees and of all taxes , assessments or
1; ens superi or to the 1; en of thi s Mortgage; second , to the payment of the
obligations of Mortgagor under the Agreement; and third , any excess to be paid
to Mortgagor or to whomever may be lawfully entitled to receive the same.
17.Defense of C1 a;ms.The Mortgagor or Bonnevi 11 e wi 11 notify the
Mortgagee , in writing, promptly of the commencement of any legal proceedings
affecting or which could adversely affect the lien and security interest
hereof, or the status of ti t 1 e to the Mortgaged Property, or any part
thereof and wi 11 take such action emp 1 oyi ng attorneys agreeable to the
Mortgagee, as may be necessary to preserve the Mortgagor l s or ,Bonnevi 11 e JI or
Mortgagee I S ri ghts affected thereby; and shoul d the Mortgagor fa; 1 or refuse to
,"'-
.-., take such action , Mortgagee may take such action on behalf of and in the name
of the Mortgagor or Bennevi 11 e and at the Mortgagor I s expense.Me reove r , the
-18-
t) €.\ ~\\..SDfO~,-.. ~~C\'\€
...
Mortgagee may take such i ndependent acti on i n connecti on therewith as it may i n
its discretion deem proper without any liability or duty to the Mortgagor
except to use ordinary care , the Mortgagor hereby agreeing that all sums
advanced or all expenses incurred in such actions , plus interest , will be , on
demand, reimbursed to the Mortgagee or its successors and assigns thereof.
18.~oi ntment of Receiver Upon the occurrence of an Event of
Default and at any time during the continuance of an Event of Default , the
Mortgagee , as a matter of ri ght and upon ten (10) days I pri or wri tten noti ce to
the Mortgagor and without regard to the then condition or value of the
Mortgaged Property or the solvency of the Mortgagor , shall have the right to
apply to any court having jurisdiction to appoint a receiver of the Mortgaged
Property, and the Mortgagor hereby i rrevocab ly consents to such appoi ntment and
any app 1 i cat i on therefor.Any such receiver or receivers shall have all the
usual powers and duti es and Shall conti nue as such and exerci se all such powers
until expiration of the redemption period from any foreclosure sale of the
Mortgaged Property, unless such recei vershi p is sooner termi nated.
19.EstoQPel Certificate Mortgagor agrees at any time and from
time to time upon not less than 15 days ' prior notice by Mortgagee , to
exec~te , acknowl edge and deli ver , wi tho ut charge , to Mortgagee or to any person
designated by Mortgagee , a statement in writing certifying that this Mortgage
is unmodified (or if there have' been modifications , identifying the same by the
same thereof and .specifying the nature thereof), the principal amount then
secured hereby and the unpai d balance of the Notes , that Mortgagor has not
received any notice of default or notice of acceleration or foreclosure of this
Mo rtgage (0 r if Mo rtgago r has rece i ved such a notice , that i t has been revo ked
i f such be the case), that to the knowl edge of Mortgagor no Event of Defaul t
-19-
, ~ Q~\~\lS
"- "i\~C\-\r.o
exists hereunder (or if any such Event of Default does exist , specifying the
same and stating that the same has been cured , if such be the case), that
Mortgagor to its knowledge has no claims or offsets against Mortgagee (or if
Mortgagor has any such cl aims , speci fyi ng the same), and the dates to whi ch the
interest and the other sums and charges payab 1 e by Mortgagor pursuant to the
Notes have been pai
20.Forebearance Not a Waiver , Rights and Remedies Cumulative
delay by the Mortgagee in exercising any right or remedy provided herein or
otherwi se afforded by 1 aw or equity shall be deemed a wai~er of or precl ude the
exerci se of such ri ght or remedy, and no wai ver by the Mortgagee of any
particular provisions of this Mortgage shall be deemed effective unless in
wri ti ng si gned by the Mo rtgagee.Each and every ri ght , power and remedy here;
given to the Mortgagee shall be cumulative and not exclusive; and each and
every right , power and remedy, whether specifically herein given or otherwise
exi st; ng may be exerc; sed from time to time and so often in such order as may
be deemed expedi ent by the Mortgagee as the case may be ; n the exerc; se , or the
begi nni og of the exerci se of' any such ri ght , power or remedy.
21.Successors and Assigns Bound; Number; Gender; Agents; Captions
The covenants and agreements herein contained shall bind , and the rights
hereunder shall inure to the respective successors and assi gns of the
Mortgagee and the Mortgagor.Wherever used , the singular number shall include
the p ura 1 , and the p ura 1 the s i ngul ar , and the use of any gender shall app
to all genders.The capti ons and headi ngs of the paragraphs of thi s Mortgage
are for conveni ence only and are not to be used to ; nterpret or defi ne the
provi s; ons hereof.
'"',. - '
-20-
0\\ t)~\~\\..S
, ..
~e ~ ~~~c\'\'C.O f
...
22.Noti ceo Any notice from the Mortgagee to the Mortgagor under
thi s Mortgage shall be deemed to have been gi ven by the Mortgagee and recei ved
by the Mortgagor when mailed by certi fi ed mai 1 by the Mortgagee to the
Mortgagor at the following address:
Fu1 crum Inc
c/o Bonneville Pacific Corporation
257 East 200 South , Sui te 800Salt Lake City, Utah 84111
Attenti on Pres; dent
Wi th a copy to Dav; d P Hi rschi at the same address
or at such other address as the Mortgagor or Bonnevi 11 may desi gnate ; n
wr; ti ng to the Mortgagee.Mortgagor and Bonnevi 11 agree that they shall
omptly advise Mortgagee in writing of any change ,in their mailing address.
23.Governing Law; Severabi ity Thi s Mortgage shall be governed by
the substantive laws of the State of Idaho.In the event that any prov; si on or
clause of this Mortgage conflicts with applicable law , such conflict shall not
affect other provisions of this Mortgage which can be given effect without the
conflicting provisions and to this ,end the provisions of this Mortgage are
. dec1 ared to be severab1 e.
24.Counterparts Thi s Mortgage may be executed ; n any number of
counterparts , each of which shall be an original , but all of which together
shall constitute one instrument.
25.Wa i ver of Marsha 11; ng Mortgagor any party who consents to
thi s Mortgage and any party who now or hereafter acqui res 1 i en on the
Mortgaged Property and who has actual or constructive noti ce of thi s Mortgage
-,:,-
hereby waives any and all right to require the marshalling of assets in con-
nection with the exercise of any of the remedies permitted by applicable law or
provi ded herei n.
-21-
r'\t:~~\\...So~v~
... =r\~C~~O
. ~-"
'C.'C.
26.Further Assurances.At any time and from time to time unti
payment in full of the obl i gati ons Mortgagor wi 11 , at the request of the
Mortgagee , promptly execute and del iver to Mortgagee such additional instru-
ments as may be reasonab ly requ; red further to evi dence the 1 i en of, thi
Mortgage and further to protect the security interest of Mortgagee with respect
to the Mortgaged Property, including, without limitation , additional security
agreements , fi nanci ng statements and conti nuat i on statements.Any reasonabl e
expenses incurred by Mortgagee in connection with the preparation and recorda-
tion of any such instruments including, but not limited to reasonable
attorney s fees , shall become additional obligations of the Mortgagor secured
by thi s Mortgage.
IN WITNESS WHEREOF , the Mortgagor has caused thi s Mortgage to be duly
executed as of the day and year first above written.
FULCRUM , INC
(SEAL)Its
"",,-
-22-
. .
SEE ATT~CHED FOR DE'TA'LS
_..
STATE OF
) ss
COUNTY OF Salt lake,
,q9t?f
day of I ,
~~
before e
, a notary public , person lly appeared~~l ,) known or i denti fi ed to me to be the of t corporati on that executed the above instrument or the person whoexecuted the instrument on behalf of said corporation and acknowl edged to me
that such corporati on executed the same.
IN WITNESS WHEREOF have hereunto set my hand and affixed official seal the day and year in this certificate first above written.
r--------------0' not . Notary Public
~ ..
TERESA B. FUGATEI '257 East 200 South
t!lc Salt Lake city, Utah 84111
My Commission ExpiresOctcber 13, 1992 h.. State of UtahL -------------_
,.
Ceon~, Il8ha
ft Iq iHIIt 011
IDAHO P-O_W ER CO~
TIME
q../
fff' AM.
DATE If q-~u-?J1JOH~ASTIOA
Eft.
Cf1.
tlJ
l,
, '~_.
~23-
EXHIBIT A
t)~\~\\.S~~o fOf\
S'C.'C.
~1\~C REAL PROPERTY DESCRIPTION
(Attached)
PARCEL A
A tract of land located in part of Government Lot 2, Section
29 and part of Govern~ent Lot 2, Section 32, Township 3 ~orth,Range 3 East, Boise Meridian, in Ada County, Idaho, rnOl"
particularly described as follows:
Commencing at the section corner common to Sections 29, 30, 31and 32, Township 3 North, Range 3 East, B.M., Ada Counti, Idaho:
thence South 89 degrees 00' 59" East a distance of 2639.
feet along the southerly boundary of said Section 29 to the
Southwest corner of said SE 1/4 of Section 29;
thence North 76 degrees 07'11" East a distance of 261.
feet to a point on the Southerly bank of the Boise River ~nu
the True Point of Beginning;
thence North 33 degrees 23' 41" East a distance of 566.17 feet
across the Boise River;
thence South 47 degrees 27' 00" East a distance of 79.60 feet;
thence North 30 degrees 07'16" East a distance of 94.87 feet;
thence South 65 degrees 09'03" East a distance of 81.29 feet;
thence South 51 degrees 23'56" East a distance of 580.60 feet;
thence South 47 degrees 24' 40" West a distance- of 748.38 feet
across the Boise River to a point on the Southerly bank ofsaid river;
thence North 41 degrees 22'00" West a distance of 399.
feet along the southerly bank of the Boise River;
thence North 51 degrees 57'00" West a distance of 165.
feet along the Southerly bank of the Boise River to the
TRUE POINT OF BEGINNI~G.
" ,.
R QE\~\\.!
f\.1\~C\-\CoQ SCot. f"\
PARCEL B
An easement for the purpose of ingress and egress over strip of land 33.00 feet in width located in the Southeas
Quarter of Section 29, Township 3 North, Range 3 East, B&)ise
Meridian, in Ada County, Idaho, more particularly describedas follows:
Commencing at the section corner common to Sections 29, 30,31 and 32, Township 3 North, Range 3 East, B. M., Ada Coun ty ,Idaho;
THENCE South 89 degrees 00' 59" East a distance of 2639.
feet along the Southerly boundary of said Sections 29 to the
Southwest corner of said SE 1/4 of Section 29;
thence North 76 degrees 07' 11" East a distance of 261.
feet to a point on the Southerly bank of the Boise River;
thence North 33 degrees 23 ' 41" East a distance of 566.
feet across the Boise River;
thence South 47 degrees 27'00" East a distance of 79.feet;
thence North 30 degrees 07'16" East a distance of 94.feet;
thence South 65 degrees 09'03" East a distance of 81.feet;
thence South 51 degrees 23' 56" East a dista~ce of 164.
feet to the Southwest corner of said access easement and the
TRUE POINT OF BEGINNING;
thence North 42 degrees 41'46" East a distance of 500.feet;
thence North 38 degrees 46' 00 II East
feet to the Southeasterly boundary of
thence South 51 degrees 15' 39 II East a
feet along the Southeaster ly boundary
thence South 38 degrees 46' 00" West afeet;thence 42 degrees 41' 46" West a distance of 498. 80 fe~t
to ~he Northeasterlv boundary of the above described tract;
thence North 51 deg~ee~ 23' 5~" West a distance of 33. 08
feet to the TRUE POINT OF BEG INNI~G.
distance of 1620.
state Highway No. 21;
distance of 33.
of State Highway No. 21;
distance of 16~1. 35
' .-......-."~-
oE.\~\\..SrO~
~ft..cr\~Os~~
~RCEL C
. ,~,-~"
An easement for the sole purpose of constructing, operatingand maintaining a hydro electric production facil ity at theBarber Dam site in Ada County, which shall include use of
said premises to the extent necessary as a pool or rese~vo
for the backwaters upstream from the dam site at the Project,
which lie at or below a maximum level of approximately 2,777
feet, with a perrnissable variation of O. 2S feet above that level;Created by an instrument entitled Ease~ent Agreement, recordedJuly 7, 1988 as Instrument No. 8833012, official records of AdaCounty, covering the following described lands:
A parcel of land being portions of the S 1/2 of the SW 1/4of Section 28,S 1/2 of the SE 1/4 of Section 29, and ~E 1/4of Section 32 and Section 33, all in T. 3 N., R. 3 E.,M., Ada County, Idaho, and more particularly describedas fo llows:
Beginning at an iron pin marking the Northwest corner of
the said SW 1/4 of Section 28;
thence South 0 degrees 3 a ' 59" West 1,724.47 feet (formerlydescribed as 1,700.00 feet) along the Westerly boundary of
the said SW 1/4 of Section 28 to an aluminum cap, alsosaid point being the REAL POINT OF BEGI~NI~G;thence South 82 degrees 56'36" East 300.16 feet to analuminum cap;thence North 51 degrees 03' 24" East 105. 00 feet to analuminum cap;thence North 83 degrees 23'24" East 379.00 feet to anal uminum cap;
thence South 85 degrees 06'36" East 216.00 feet to analuminum cap;
thence South 62 degrees 36'36" East 207.00 feet to al urninurn cap;thence North 89 degrees 38' 24" East 146.81 feet to a
lead plug and tack on the Easterly boundary of GovernmentLot 2 of the said SW 1/4 of Section 28
thence South 0 degrees 48' 49" West 369.55 feet a long
a certa in ex isting fence line to an al uminurn cap;
thence Xorth 83 degrees 01'08" West 1,297.46 feet along
a certain existing fence line to an aluminum cap;
thence South 0 degrees .24' 47" West 294.00 feet along
a certain existing fence line to an aluminum cap on
the ~ortheasterlv meander line of the Boise River,
said point bears South 0 degrees 13'30" ~~est 2,270~21
feet free the said Northwest corner of the SW 1/4 ofSection 28;
Continued on next page
-"-
D FOR DE,.A\LSSEE ATTAC thence Southeasterly along the said Northeasterly ceander
line of th~ Boise River to an aluminum cap, said . pointbears South 34 degrees 27'20" East 4,799.48 feet '.fromthe Northwest corner of the SW 1/4 of Section 28;thence North 2 degrees 37'00" West 921.27 feet along acertain existing fence ine to an aluminum cap on th~Westerly right-of-way line of the Penitentiary Canal;thence Southeasterly along the said Westerly right-of-wayline of the ?enitentiary Canal the following coursesand distances:
'---
South 46 degrees 32'52" East 211.77 feet to analuminum cap;
thence South 66 degrees 58'15" East 144.63 feet toan al uminun cap;thence South 59 degrees 01'16" East 103.85 feet toan aluminum cap;
thence South 59 degrees 41'59" East 287.57 feet toan aluminum cap;
thence South 53 degrees 10' 53" East 116.56 feet toan aluminum cap;
thence South 39 degrees 10'11" East 107.37 feet toan aluminum cap;
thence South 46 degrees 25'31" East 191.59 feet toan a uminurn cap;
thence South 38 degrees 25'22'. East 85.68 feet an aluminuI'J cap;
thence South 18 degrees 41' 30" East 207. 08 feet toan a urninurn cap;
thence South 19 degrees 36' 20" East 90.43 feet t~an aluminum cap;
thence South 5 degrees 45' 30" East 221.54 feet an a urni nurn cap;
thence South 1 degree 17' 35" West 360.61 feet an al uminum cap;
thence South 5 degrees 12' 25" West 307.54 feet toan aluminum cap;
thence South 9 degrees 57' 47" West 332.21 feet an aluminum cap;
thence South 7 degrees 44'41" West 6.37 feet to analuminum cap on the Southerly boundary of the NE 1/4of the said Section 33, which bears North 88 degrees52'07" West 1,493.97 feet along the said Southerlyboundary of the ~E 1/4 of Section 33 from a brass capmarking the Southedst corner of the said NE 1/4 of Section 33;
thence North 88 degrees 52' 07" West 487.26 feet alongthe said Southerly boundary of thp NE 1/4 of Section to an aluminum cap on the Easterly meander line of theBoise River, said point bears South 31 degrees 06'38" E~~t6, 170 . 12 feet f rom the Ra id ~orth\o/est r;C)l-n~r of the 1/4.of S~ction 28;
Continued on next page
" ,,
SEE ATTACHED FOR DETAILS
. thence continuing ~orth 88 degrees 52' 07" West along th~said Southerly boundary of the NE 1/4 of Section 33 to d
..
point on the Westerly ~eander line of the said Boise Riv~~;thence Southerly along the said Westerly meander
line of the Bois~ River to a brass cap on the Southerlyboundary of the S2 1/4 of the said Section 33, said point bears South 23 degrees 21'30" East 8,612.10 feetfrom the said ~orthwest corner of the SW 1/4 of Section 28;thence North 87 degrees 29' 09" West 434.96 feet alung thesaid Southerly boundary of the SE 1/4 of Section 33 to ."inaluminum cap, which bears South 87 degrees 29 r 09" Edst535.26 feet along the said Southerly boundary of the SE 11 of Section 33 from a stone monument marking the Southw~stcorner of the said SE 1/4 of Section 33; thence North 57 degrees 27'51" West 381.17 feet to anal uminum cap;
thence North 42 degrees 07'08" West 302.33 feet to aluminum cae on the Westerly boundary of the said SE 1/4of Section 33;thence North 1 degree 30 r 03" East 891.71 feet along thesaid Wester ly boundary of the SE 114 of Section 33 to analuminum cap marking the Southeast corner of Gove=nmentLot 8 of the SW 114 of the said Section 33;thence North 89 degrees 29' 56" West 953.02 feet along theSoutherly boundary of the said Government Lot 8 of th~SW 1/4 of Section 33 to an aluminum cap on a line14.00 feet Northeasterly of th~ Northeasterly toe ofslope of the New York Canal;thence North 40 degrees 21 f 55" West 65.00 feet alonga line 14.00 feet Northeasterly of the said Northeast~rlytoe of slope of ,the New York Canal to an aluminum cap;thence North 48 degrees 53' 3S" West 132.27 feet along
line 14.00 feet Northeasterly of the Northeasterlytoe of slope of the New York Canal to an aluminu~ cap;thence North 50 degrees 17 f 40" West 495.58 feet along a
line 14.00 feet Northeasterly of the said Northeasterlytoe of slope of the New York Canal to an aluminum cap; thence North 57 degre~s 36' 22" West 102.81 feet along aline 14.00 feet Northeasterly of the said Northeasterlytoe of slope of the New York Canal to an aluminum cap;thence North 37 degrees 11 f 05" West 360.28 feet to analuminum cap;
thence North 37 degrees 01' 09" t"iest 493.50 feet to analuminum cap;
thence North 68 degrees 41' 09" Nest 593.50 feet to analuminum cap;
thence North 88 d~grees 10 f 09" West 351.33 feet to analu~inurn cap on a line 14.00 feet Northeast~rly of thesaid Northeasterly toe of slope of the New York Canal;thence . a long a i~e 14. 00 fee ~ Northeasterly of the RdiJ~ortheasterly toe of slope of the New York C~nal thefollowing cour~es ~nd distances:
'"'--
Cont i nued on next page
,~.. ..-.
....... c
SEE ATIACHED FOP. DeTA'LS
North 59 degrees 37'00" West 62.58 feet to an aluminum cap;therice North 60 degrees 03' 44" West 244.71 feet to an
al uminum cap;
thence North 50 degrees 33' 39" West 204.48 feet to an
aluminum cap;
thence North 64 degrees 11'09" West 128.06 feet to an
aluminum cap;thence North 51 degrees 42'07" West 152.04 feet to an
aluminum cap;
thence North 46 degrees 14'23" West 595.37 feet to an
aluminum cap;thence leaving a line 14.00 feet Northeasterly of the
said Northeasterly toe of slope of the New York CanalNorth 0 degrees 40'21" West 151.91 feet to an
aluminum cap;
thence North 0 degrees 18' 57" West 130.02 feet to analuminum cap;
thence North 8 degrees 31' 51" West 217.57 feet to ' analuminum cap;
thence North 20 degrees 19'21" West 128.80 feet to analuminum cap; thence North 12 degrees 42' 57" East 118.56 feet to analuminum cap;
thence North 27 degrees 38' 36" West 140.87 feet to an
aluminum cap;
thence North 18 degrees 04'05" West 282.19 feet to an
al uminum cap;
thence North 34 degree~ 11' 09" West 136.40 feet to analuminum cap;
thence North 37 degrees 06.42" West, 104.14 .feet to an
aluminuc cap;
thence North 44 degrees 2 0' 58" West, 72.92 feet to an
al uminurn cap;
thence North 31 degrees 12' 23" West, 123.09 feet to an
a 1 urninum cap;
said point bears South 83 degrees 15' 37"
East 3:26.feet from brass cap marking the
Northwest corner the said Section 32;thence ~o rth degrees 49'15"East 262.feet
a 1 urninurn cap;thence South deg ree~47'35"East 73.feet
a 1 umi nuc::l cap;thence South deg rees 56'06"East 74.feet
a 1 uminuC'J cap;thence South degrees 52'36"Esat 1:28.feet
a 1 urn i nur.1 cap:thence ~C)rth c.1eg rees 19'05'.East 439..E eet
Continued on ne.~ page
UED FOR DE1~\LS
SEE F\TT~Cn
al uminum cap;thence North 82 degrees 24' 19" East 419.24 feet to aluminum cap;
thence South 82 degrees 56'36" East 183.84 feet to thepoint of beginning.
EXCEPT any portion contained in a Deed to Ada
County reco rdedAugust 11, 1986 as Instrument ~o. 8646168, records of Ada County,Idaho.
\. ...............-....",
EXHIBIT B
E1p..\LS
Stt p.Ti",CHEO
fOR 0 PERMITTED ENCUMBRANCES
The Mortgaged Property is subj ect to the following
encumbrances and no others:
Real estate taxes and special assessments not yet due andpayable.
Rights of control exercised by the U. S. Army Corps of
Engineer on navigable waters of the United States.
Easement, and the terms and conditions thereof:
American Telephone and Telegraph
Company of WyomingPurpose Right-of-WayRecorded October I, 1941
Book/Page No. 17/473 of Miscellaneous Recordslimited, however, to the actual location of any telephone
lines actually located on the Mortgaged Pr?perty
In Favor of
Easement,and the terms and conditions thereof:
, "
In Favor of Idaho Power Co~pany
Purpose P owe Line
Recorded Marc h 19,1942
Book/Page No.18/54 of Miscellaneous records
Easement,and the terms and conditions thereof:
In Favor of Mountain States Telephone and
Telegraph Company
Authority to construct, operate andmaintain telephone and telegraphlinesJanuary 20, 1953341160
actual location of any lines
Mortg aged Property.
Purpose
RecordedInstrument No.limi ted, however, to theactually existing on the
Easement, and the terms and conditions thereof:
In Favor of
Purpose
RecordedInstrument No.
Idaho Power Company
Power Line
August 3, 1960
484521
Easemen t, and the terms and condi tions thereof:
"'--' ...............
'"" "-.~. .
10.
. ..
11.
12.
13.
,,-,
SEE ATTACHED FOR DE1'A\lS
In Favor ofPurpose
Recorded
Idaho Power Company
Power Line
As shown on Survey-Distribution
System, Boise, Idaho, Map No.24-Z-562, SET. 70, dated May, 1964
Easement, and the terms and conditions thereof:
In Favor of
Purpo s e
RecordedInstrument No.
Idaho Power Company, a corporation
Power Line and Incidental Purposes
August 29, 1950
306894
Easement, and the terms and conditions thereof:
In Favor of
Purpose
RecordedInstrument No.
Campbell-Child Brick Company
Railroad Right-Oi-Way SpurApril 26, 1961
501492
Easement, and the terms and conci tions thereof:
In Favor of
PurposeRecorded
Instrument No.limi ted, however, to
Idaho Park Foundation, Inc.
Scenic Easement
December 31, 1981
8154872
Parcel C of the Mortgaged Property.
Terms, provisions, covenants, conditions, definitions,
options, obligations and restrictions:
Imposed By Corpora tion Quitclaim DeedsDated' January 23, 1978 and June 1, 1978Instrument No. 7820919 and 7828796Providing: If . real property shall be maintained forthe public as "a part of the Boise River Greenbelt
System. "
Any rights, interests or easements in favor of the State of
Idaho, the Uni tea States of America, or the public which
exist or are claimed to exist in and over the waters, bedand banks of the Boise River.
Combination M)rtgage, Security Agreenent" and Fixture Financinc;:.~Statement
State:!. 1\m::)unt
M:)rtgagor
M:)rtgagee
$5,420,000
Fulcrum Inc, an Idaho Corporation
NORWEST BANK mNNESOrA, NATICNAL
ASSCCIATION, FOR ITSELF AND
AGENT FOR FIRST SECURITY BANK
UTA!! , N A RANIER NATIONAL BANK
h'ID MARQUE'l'Jj:;BANK MINNEAPOLIs, .N A
-2-
"-,.
Dated Recorded
:In.strum:nt No.
August 1, 1988
August 4 1988
88-38191
~ctions:STATE OF ID~HO FINANCING STATEMENT - FORM UCC-Customer Account Number
, .
PLEASE TYPE THIS FORM IN BLACK2. Filing Fees: a. With Secretary of State. Except fat pre-paid account users. enclose filing fee of $6.00 if form is typed, or $'0.00 if
not typed. For attachments. add $1.00 per printed page. Pre-paid account users must enter Customer Number in
Customer account number" block to right
b. FixtUre filing with County Recorder. Enclosed recording fee..of $3.00 per page.3. File on the original. Make copies for your file. The original will be returned as your acknowledgment.4. Enter only on debtor s name or assumed name per debtor block exactly as it is to be indexed. If more than four names. use an attached
sheet. Enter individual debtor names: Last, First Middle, Title; e.g. Smith, John Alan Jr,
5. When the obligation has been satisfied. complete the Termination Statement and return the original to the filing officer,
IJ;d'
, '
'\.J
----
Mail to: Secretary of State, UCC Division, 700 W. Jefferson. P,O. Box B3720, Boise, ID 83720-0080. Ph. 208-344-3191,
Debtor #1 (Last name, first, middle, title & mailing address)Debtor #3
RUPERT COGENERATION PARTNERS, LTD.
A COLORADO LIMITED PARTNERSHIP
71 ALLAN STREET, BUILDING A
RUTLAND, VT 05701-4470
A TRANSMITTING UTILITY
Debtor #2
SEEm
Debtor #4
""""'"
Secured Party and Address Assignee and Address
IDAHO POWER COMPANY
O. BOX 70
BOISE, ID 83707 Check if Covered 0 Product of collateral are also covered
EVANS, KEANE LLP
O. BOX 959
BOISE, 10 83701-0959
If one of the following boxes IS checked. the secured part may sign the
financing statement, The collateral described herein is:
Brought into this State already subject to a security interest in an-
other jurisdiction
Subject to a security interest in another jurisdiction, and the
debtor's location has changed to this state
Proceeds of the original collateral described below in which a
security interest was perfected,
...........
Mailing Address for Acknowledgment, if not Secured Party
\:"bi....f
0 The subject of a financing statement which has lapsed.
Subject to a security interest perfected under a prior name or
identity or the debtor,
This financing statement covers the following types or items of property:
(If this is a fixture. timber or mineral filing to be recorded with the County Recorder, include legal description and name of record owner, if required).
See Exhibit A attached hereto and made a part hereof. All of the real property described on Exhibits A-1 and A-2. This
financing statement is to be filed of record in the real estate records. This financing statement is subject only to the
permitted liens set forth in Exhibit B attached hereto and made a part hereof.
Signature(s) of Debtor(s)
RUPERT COGENERATION PARTNERS, LTD.
-I-~.ktr.
Filing Office Use Only
Secured Party Signature IDAHO POWER COMPANY
IDAHO SECRETARY OF STATE
DATE 11/14/1996 0339 39438
By:
TERMINATION STATEMENT-The Secured Party no longer claims a
security interest under the financing statement.
CK I: 30401 CUSTI 21288
UCCl FILE6. 00= 6. 00ATTACH 1. 00= 39. 00
Secured Party or Assignee of Record Date 729446
,.., "'").~O88:1 J!(.. (
Instructions:STATE OF IDAHO FINANCING STATEMENT - FORM UCC-
1. PLEASE TYPE THIS FORM IN BLACK2. Filing Fees: a, With Secretary of State, Except for pre-paid account users, enclose filing fee of $6.00 if form is typed, or $ 00
not typed. For attachments, add $1 ,00 per printed page. Pre-paid account users must enter Customer Number in
Customer account number" block to right
b. Fixture filing with County Recorder, Enclosed recording fee of $3.00 per page.3. File on the original. Make copies for your file. The original will be returned as your acknowledgment.4, Enter only on debtor s name or assumed name per debtor block exactly as it is to be indexed. If more than four names, use an attached
sheet, Enter individual debtor names: Last, First Middle, Title; e,g, Smith, John Alan Jr,
5, When the obligation has been satisfied, complete the Termination Statement and return the original to the filing officer,
Q ~ (I " n
, . -- ,., ':' :'; ;-:~
. : ! '- S -
(\.. ....;
0;\.
,.-..) ,., ;-:"',
~UL
Ei; Cf/lL5--G/J1 i ~
,-, ' '" -
I. I ,~
' :. ,,: .
Mail to: Secretary of State, UCC Division, 700 W, Jefferson, P.O. Box 83720. Boise, 10 83720-0080. Ph. 208-344-3191 ,
; n (' "'
OU'0 b f-q 11 20
Debtor #1 (Last name, first, middle, title & mailing address)Debtor #3
:.... -
, :JAHC)
)~
iiJ~' r ~l,*iJ
: -
. k:1" ..,_.... L:::;\.; i i !t1-.,
BeI)( 5Q Bo iDe I D0 -
RUPERT COGENERATION PARTNERS, L TO.
A COLORADO LIMITED PARTNERSHIP
71 ALLAN STREET, BUILDING A
RUTLAND, VT 05701-4470
A TRANSMITTING UTILITY
Debtor #2 Debtor #4
Secured Party and Address Assignee and Address
,',,',
IDAHO POWER COMPANY
O. BOX 70
BOISE, 10 83707 Check if Covered 0 Product of collateral are also covered
Mailing Address for Acknowledgment, if not Secured Party
,_:.,,
EVANS, KEANE LLP
O. BOX 959
BOISE, 10 83701-0959
If one of the following boxes is checked, the secured part may sign the
financing statement. The collateral described herein is:
Brought into this State already subject to a security interest in an.
other jurisdiction
Subject to a security interest in another jurisdiction, and the
debtor s location has changed to this state
Proceeds of the original collateral described below in which a
security interest was perfected,
,',,',',',,',,',',,',,',,',,',',',',,',
0 The subject of a financing statement which has lapsed.
Subject to a security interest perfected under a prior name or
identity or the debtor,
This financing statement covers the following types or items of property:
(If this is a fixture, timber or mineral filing to be recorded with the County Recorder. include legal description and name of record owner, if required).
See Exhibit A attached hereto and made a part hereof. All of the real property described on Exhibits A-1 and A-2. This
financing statement is subject only to the permitted liens set forth in Exhibit B attached hereto and made a part hereof.
Signature(s) of Debtor(s)
RUPERT COGENERATION PARTNERS, L TO.
BY:
~r
Filing Office Use Only
Secured Party Signature IDAHO POWER COMPANY
.-...:....
By:
TERMINATION STATEMENT-The Secured Party no longer claims a
security interest under the financing statement.
Secured Party or Assignee of Record Date
~--'
...
EXHmIT A TO UCC-FINANCING STATEl\1ENT
1. Definitions. Unless otherwise defined herein, all capitalized tenns used in this
Exhibit A that are defined in the Combination Deed of Trust, Security Agreement and Fixture
Financing Statement. shall have the respective meanings set forth in the Combination Deed
Trust , Security Agreement and Fixture Financing Statement.
2. Description of Collateral.As security, the Company pledges , assigns , transfers
delivers to and grants Idaho Power Company a continuing second priority security interest (the
Security Interest") in the following personal property (the "Collateral") now owned or in the
future acquired by the Company or in which the Company now has or may in the future acquire
any right, title or interest, subject only to the rights of TORONTO-DOMINION BANK
Houston Agency and Toronto Dominion (Texas), Inc., a Delaware corporation, its successors
and assigns , including;
The following documents:
(i)The Finn Energy Sales Agreement;
(ii) Qualified Facility Self-Certification, Docket No. QF93-88-
000 dated May 30, 1993;
(iii) Grant of Easement dated December 21 , 1995 , by and
between Magic Valley Foods, Inc. and Grantor;
(iv) Lease Agreement dated September 25 , 1995 , between
Grantor and Magic Valley Foods, Inc., as amended on December 21 , 1995;
(v) Air Quality Pennit No. 067-00012 , issued by the Idaho
Department of Health & Welfare , Division of Environmental Quality;
(vi) CH2M Hill Phase I Environmental Assessment Magic
Valley Foods, Inc., February, 1995.
(vii) NEPA categorical exclusion for Magic Valley Foods, Inc.
Cogeneration Facility, Rupert, Idaho , prepared by Parsens, Brinkenhoff on April
, 1994;
(viii) Building permit issued by the City of Rupert dated March
, 1996;
(ix)Steam Boiler Certification issued by the City of Rupert;
(x) Northwest Pipeline Corporation s direct service application
approved by the Federal Energy Regulatory Commission (FERC);
EXHIBIT A TO UCC-FINANCING STATEMENI
(xi) Grant of Easement dated December 21 , 1995 , by and
between Magic West, rnc. and assignor.
(xii) Howard Consultants, Inc, Level I Environmental Assess-
ment dated March 8 , 1995;
(xiii) Howard Consultants, Inc, Letter Report, Limited Environ-
mental Assessment dated December 5 , 1995;
(xiv) Consent to Grant of Easements Appurtenant to Leasehold
(Rupert) dated December 28, 1995 by and between Magic Valley Foods, Inc.
Rolland Jones Potatoes, Inc., John Hancock Mutual Life Insurance Company and
Grantor.
(xv)
of the Project;
Plans and specifications for the construction or modification
'- --
(xvi) All zoning, conditional use and subdivision development
specifications, filings and approvals, and all other pennits licenses , approvals
consents and certificates obtained or held in connection with the Property; and
also including without limitation all documents, agreements , correspondence
surveys, studies, architectural renderings, maps, diagrams , water rights, water
stock, licenses , permits, approvals , orders , contract rights , rights , interests
property, service contracts for the equipment in the Project, and benefits arising
out of or which exist in connection with any of the foregoing; and also including
without limitation all water rights, water contracts, and other rights , benefits and
privileges pertaining to said hydropower project.
(xvii) All zoning, conditional use and subdivision development
specifications, filings and approvals, and all other pennits licenses , approvals,
consents , and certificates obtained or held in connection with the Property or
Original Borrower s ownership thereof.
(xviii) All documents, agreements correspondence. surveys,
studies, architectural renderings , maps, diagrams , water rights, water stock
licenses , permits, approvals, orders, contract rights , rights , interests, property,
service contracts for the equipment in the Project, and benefits arising out of or
which exist in connection with any of the foregoing.
b. All improvements, appurtenances and additions of any kind whatsoever to
the hydroelectric generating structures including, but not limited to, the powerhouse , the
substations , all water conduits, dams , ditches, diversions and appurtenant works and structures
all storage, diverting and forebay reservoirs connected therewith, the inter-connection facility,
all equipment and all other supporting improvements and facilities.
EXHIBIT A TO UCC-FINANCING STATEMENT - 2
c. All existing and future goods and tangible personal property of any kind
or description, located or to be located on or in the Property or wherever located, now or in the
future used in connection with, or related or to be related to, the construction, occupancy, use
operation or maintenance of the Property or the Project including all hydroelectric power
generating, distributing or transmitting machinery and equipment, all machinery, equipment
appliances, work in progress, furniture, furnishings , inventory, fixtures, materials, supplies and
vehicles of any kind or description, and all repairs, attachments, renewals or replacements of
all or any part of the foregoing.
d. To the extent assignable all accounts, contract rights , documents
securities, chattel paper, instruments, notes, drafts, letters or advises of credit, receivables and
other amounts and obligations owing to the Company, in each case in respect to the Project and
all ledger sheets, files and records, architectural drawings, plans, specifications, soil tests
feasibility studies, appraisals , engineering reports and similar materials relating to all or any part
of the Collateral or the Project.
e. To the extent assignable , all general intangibles, chooses in action and
claims and rights to recover and proceed against any person, in each case relating to the design
development, construction, ownership, acquisition, occupancy, use , operation, maintenance and
disposition of all or any part of the Collateral and the Project, including all goodwill, all
Government Approvals , all authorizations, approvals , consents, waivers, exceptions, licenses
filings, registrations , pennits , notarizations, special leases and other requirements of any
governmental, quasi-governmental, judicial or public or statutory authority, body or entity
(" Governmental Actions ) and all materials prepared for filing or filed with any governmental
agency in any way relating to the Project.f. All of the Company s right, title and interest under all of the Project
Documents to which the Company is a party and , to the extent assignable, all other contracts
(including those with any general contractors and subcontractors), leases, licenses and pennits
concerning the design, development, construction, ownership, acquisition, occupancy, use
operation, maintenance or disposition of all or any part of the Collateral or the Project, as the
same may be modified, amended or supplemented from time to time.
g.
All payment and perfonnance bonds or guaranties relating to all or any
part of the Collateral or the Project and any and all modifications and extensions of the same.
h. All warranties or similar product perfonnance, suitability and merchant-
ability representations , indemnities and guaranties given by the vendors and suppliers of any
Collateral (including without limitation those given by the Equipment Supplier) and the right to
recover against and proceed with respect to the same to the extent assignable.
All Taking Proceeds.
j.
All proceeds from , and all rights to recover against and proceed with
respect to, policies of insurance insofar as they relate to all or any part of the Collateral or the
design, development, construction, ownership, acquisition, occupancy, operation, maintenance
EXHIBIT A TO UCC-FINANCING STATEMENT - 3
or disposition of all or any part of the Collateral or the Project maintained in respect to all or
any part of the Collateral or the Project, and any and all riders, amendments , extensions
renewals , supplements or extensions of such policies.
k. All names under or by which all or any part of the Collateral or the Project
may at any time be operated or known.
1. All other proceeds (including proceeds from the sale of power) in whatever
form of all or any part of the Collateral.
Without limitation of the generality of the foregoing description of the Collateral and without
duplicating the effect of any other provision herein, the Collateral shall include all monies due
and to become due under any of the Project Documents to which the Company is a party
under any other contract, lease , license , permit, bond, guaranty, warranty, indemnity, policy
of insurance, Governmental Action, in each case which is part of the Collateral, or any other
part of the Collateral , any damages arising out of or for breach or default in respect of any of
the foregoing, all other amounts, if any, from time to time paid or payable under or in
connection therewith, the right of the Company to terminate any of the foregoing or to perform
or to exercise remedies thereunder whether conferred by agreement, statute, law or otherwise
or to exercise any election or option to make any decision or determination whatsoever or to
give any notice, consent, waiver or approval or to take any other action under or in respect
thereof. The term "proceeds " shall include whatever is received or receivable when the
Collateral referred to above or proceeds therefrom are sold, collected, exchanged or otherwise
disposed of, whether such disposition is voluntary or involuntary.
EXHIBIT A TO UCC-FINANCING STATEMENT - 4
..........-..
Policy No.: C 385519
Order No.10650
SCHED tTLE C
(p
i\GE 1 OF
TRACT NO.
TOWNSHIP 9 SOtJTrl, R.\2."IGE 24 EAST, BOISE NIERIDL~~
:MINIDOK..'\ COu~, ID:\HO
SECTION 29:Tnat part of the SWlASWlA
, -
more particularly described
follows:
gjnnin g at the Southwest corner of Se~ion' 29 (NIonurnented by a 5/8 inch
rebar); thence South 89O OO" East for 1327.92 feet along the South secr.ion line
to the Southeast corner of the SW~SW~ (Iv1onumented by a 5/8 inch rebar); .
thenc~ North 00 11'27" East for 3C5.32 fee~ along the East line of the SWlASW1,4
to an existing 7i inch rebar on the North right of way of State Highway 24;
thence along a curve to the right with a centzoal angle of 5024'08", a radius of
1392.40 feet, and an arc length of 131.29 feet and a chord distanc~ of 131.24 feet
with a chord bea.;ng of South 57O 18'2i" West along said highway right of way
to a concrete highway monument; thenc~ North 18O CS'O5" West for 358.62 feet
to a 12 inch rebar which shall be the TR1JE PO~l OF BEG~N1N'G;
The!lc~ South 45031'18" WeSt for 322.67 fee~ to a ;-2 inch rebar;
Thenc~ North 44028'42" West for 135.CO feet to a 12 inch rebar;'
Thenc~ North 4-5031'18" East for 322.67 fe~t to a 12 inch rebar;
T.b.en~ South 440 28'41" East for 135.=:0 fee~ to the TRlJE POI1\4'1 OF
BEG~~~G.
, .
(CON i l1.'rl7E
EXHiBIT ..A
" /
P AG E-L- OF
"""-'-'--
Policy No.: C 385519
Order No.10650
SCHEDuLE C
0 NTThi lIED)
(p _
A.GE 2 OF
TR-~CT NO.
TOWNSHIP 9 SOUTH, R.~'\TGE 24 E.A..ST, BOISE ~IERIDL~"T
~~IDOK-'\ COLf1\j1Y, ID.A:HO.
SECTION 29:That part of the S2 1,4SWlA , . more particularly described
fol1o-ow-
Beginning at the Southw-come: of SeCtion 29 (11onurnented by a 5/8 inch
rebar); thence South 89O S'6'CC" East for 1327.92 feet along the South section line
to the Southwest corne: of the SE lASWlA (NIonumented by a 5/8 inch rebar); .
thence North 00 11'27" Ea.st for 994.+5 feet to a point which shall be the TRT.JE
PO~l OF BEGmN0JG;
Thence South 89023'15" East (recorded as East) for 549.27 feet to an existing 74-
inch rebar on the Norr.hwesterly right of war of State Hlghway 24 and
., ~.
..I
Thence North 310 46'21" East for 252.64 fee! along said highway right or way
to a ;1 inch reoar;
Tne:lce North 89057'13" West for 46.72 feet (recorded as West for 47.CO fee!)to a lh inch rebar;
Thence North 00 11'27" East (recorded as North) for 11S.CO feet to a 14. inch
rebar on the North line of the SElASW1A;
The:lce North 89Q 57~13" West for 376.41 fee! (recorded as West for 377.5 feet). 1 t" - L
to a Yz lD.c~ reoar on t e out..:leaste:1Y ng!lt at way or t e J:.astern ,a.o.o
R3ilroad (U cion Fac:fic Railroaa');
Thence South 45=31'13" WeSt for 363.40 fee! along said railroad right of -w-
to a ;-: inch reb~ on the West line of the SE1ASW~;
Thence South CO ll'27" WeSt for 69.6-1- fe~! (recorded as South 68.0 feet) to the
TRtJE POI041 OF BEG~~lliG.
(CON 11.;."\j ED)
..b.o.
EXHIBIT
PAG
~-,
01= . 7-~
Policy No.: C 385519
Order No.10650
SCHEDULE C
( C 0 l'fm-fUED )
(P A.GE 3 OF
TR..A.CT NO.
TOWNSHIP 9 SOUTh, R.~'-JGE 24 E..-\ST, BOISE tvf.ERIDL~"J"
MINlDOK.A. CO~Tf, ID_ABO.
SECTION 29:That part of the SWl,4SWlA , more particularly described
follows:
g1r1r11!1g at the Southwe~ corner of Section 29 (Nloc.umented by a 5/8 inch
rebar); thence South 89Os(6'OC" East for 249.1C feet along the South section line
to the Southe:lSte:ly right or way of the Easte:n Idaho Railroad (Union Pacific
Railroad); therlce North 450 31' 18" East for 5C.O7 feet ~ong said railroad right
of way to a ~ inch rebar on the North right of way of State Highway 25
which shall be known as the TRITE POINi OF BEG~"0ilN"G;
The!lce North 450 31'18" East tor 1311.17 feet along the Southeasterly right
way of said :"d- cad to an e:astL."1g ~-: inch reoa:-;
The:lce North 76o r36" E~ for 114.18 feet (recorded as North 760 East for
115 fe~t) to a :h inch rebar on the East line or the SWl,4SW1;4;
The!lC;: South CO 11'17" West for 677.15 feet along the East line of the
SW~SWlfi to an existing ;6 inch :eba.: on the North right of way of
tate glr~.'-ay _4 ana
~~;
L .
. ,
I'" -...
""',.
ne!lce ong a C"J.z-,,e to tile ng!lt Wl';ll a cent:... ang_e or ,,"24 ~ , a :aClUS a
(" ""
I'" t
..
;,;1 r "'1'"
...-- ~, "" /
1"':::""1'""'~ ... r.-4
-... ...
1;1 -.. .e_..ci..I.'-
~...
ot
"" -.-
-...-- Qo.Uc. a C..40_d.1s",4.D.C- a ;1
fee':: with a chord be:lring or South 57~18'27" West along said highway
("
ng!lt or way ~O a concrete g!lw.ay rnonur::ent ~lt, rass cap;
The:lc~ South 6CO CC'31" We5i. for 211.70 fe~!: along said highway right of way
to a ~ inch reoar;
. ..
"'0""-'1"'\~ ~ence along C"..l!"ve to i:~ e :J.g t Wtt a c~nt: a."lg.ot;)1..J \J ; a ra usor
676.30 fee!; an. arc lengr.h of 359.+2 ree! and a chord distance of 355.
feet with a chord bea.-ing of South 75:)14':1" WeST. along the North right
of way of State Highv.ray 25 to a ~ inch rebar;
Thenc~ South CO27'31" West for 5.::0 feet along said I-iighw-ay 25 right of way
to a 14- lnc reoa:-;
Thence ~orth 390 32'19" West for 406.81 fee':: along the North right of w-ay of
SC:lte Highw:l? 25 to the TRG""E PO~l OF BEGr::N~Th"G.
SA v=. A.iD' E."'X:CEPT~G the rollow-ing desc:ibed parc~l:
...---
(CONTIN1JED)
EXH i8'T
--" -: -, ._
P AG E 3 Of
=-;
Policy No.: C 385519
Order No.10650
SCHEDULE C
(CONTINUED)
(P AGE 4 OF
Beginning at the Southwest comer of Section 29 (Nlonumented by a 5/8 inch
rebar); thence South 890 56'00" East for 1327.92 feet along the South section line
to the Southeast comer of the SWIASWIA (Nlonumented by a 5/8 inch rebar);
thence North 00 11 '27" East for 305.32 feet along the East line of the SWlASWIA
to an existing ~ inch rebar on the North right of way of State Highway 24;
thence along a curve to the right with a central angle of 50 24'08", a radius of
1392.40 feet, and an arc length of 131.29 feet and a chord distance of 131.24 feet
with a chord bearing of S~uth 570 18'27" West along said highway right of way
to a concrete highway m6nument; thence North 180 05'05" West for 358.62 feet
to a ~ inch rebar which shall be the TRUE POINT OF BEGINNING;
Thence South 45031'18" West for 322.67 feet to a inch rebar;
Thence North 44028'42" West for 135.00 feet to a 1h inch rebar;
Thence North 45031'18" East for 322.67 feet to a ~ inch rebar;
Thence South 44028'42" East for 135.00 feet to the TRUE POINT OF
BEGINNING.
UTILITY E.ASEivlENl (HIGH PRESSlJRE G.o\S AND W A TER l\tLAIN"S
SITE)
..to
Commencing at the Southwest corner of Parcel 2 (known as Tract No.1 shown
above); thence North 44028'42" West for 8.77 feet to the TRTJE POINT BEGINMNG;
Thence South 17O CO'43" West for 327.29 feet to a point on the North right of
way boundary of Highway 24;
Thence along a curve to the right with radius 676.30 feet, arc length 21.68 feet
tangent 10.84 feet, chord 21.68 feet, chord bearing South 840 17'50" West
and delta of 1 0 SO' 13" following the North right of way boundary of
Highway 24 to a point;
Thence North 17O CO'43" East for 346.52 feet to a point on the West boundary
of Parcel 2 (known as Tract No.1 shown above);
Thence South 44028'42" East for 22.76 feet to the TRUE POINT OF
BEG~"NING.
(C ONTINUED)
EXHIBIT
PAG OF
u_-,
""-----
Policy No.: C 385519
Order No.10650
SCHEDULE C(CO~ lJED)
(P .A.GE 5 OF
UTILITI E_\SENrE~l (STE..~vl fu~1) CONTIENSATE)
Commencing at the Northwest corner of Parcel 2 (known as Trac: No.
shown above); thence North 450 31'18" East along the West boundary for 49.
feet to the TRlJE POC\Jl OF BEGIN1\1:NG;
Thence North 44028'42" West for 54.08 feet to a point on the footprint of
NIagic Valley Foods Steam building;
Thence North 42O21'2+~' East along the building footprint for 20.03 feet to a
pomt;
Thence South :4028'42" East for 55.18 feet to a point on the North boun~:;ry
of Parcel 2 (known as Trac: No.1 shown above);
Tnence South 45':J 31'1S" W~t along the North parcel boundary for la.co feet
to the TRlJE PO~l OF BEG~N1N"G.
UTILITY E.~SElv1E~l (ELECTRIC.AL POWER)
~rTle:lc:ng at the Nor:h~.esr. corne:- of Parcel 1 (k.no~"n as Trac: No.
sho~'-!l abov.e); thence North +5C31'18" East along the North bounda..-y of Parcel
2 (k:1o'~"'-n a.s Trac: No. 1 sho~.n above) for 145.62 fee~ to the TR1JE PO~l
OF B GIN~ThG;
.....,
4 ~ 0" 4'
- -"
t"
- /' -
t" ..1--nence l. Or:ll.,.....,
y~.)/
est tor )0.ree! to a pomt on t.ne out ounc:a;.-y
or Easte:n Idaho Railioad right of "W.ay;
Thence Nor:~ 450 31'17" E4.Si. for 20.CO feet along the railroad right or vtay to
a Oolnt;
Thence South 4+034'37" East for 56.58 feet to a point on the North bounc;;...-
or Parcel 2 (known as Trac: No.1 shown above);
: Thenc~ South 45031'18" West along the No~h boundary of Parcel 2 (kno~.
as T :ac-.. No.1 show-u above) for 2C.CO feet to the TRtJE PO~l OF
BEG~~l1\;G.
(C 0 N~l..JtD)
..!-
EXHIBIT
~ -
PAGE OF
Policy No.; C 385519
Order No.10650
.OC_SCHEDtJLE C
0 NuNtTED)
(P .A..GE 6 OF
UTILITY EASE1vlE~l (Sfu~lTA.R Y SEw t
Commencing at the Southeast corner of Pa.rc~l 2 (known as Trac: No.1 shown
above); thenc~ North +4~28'42" West along the East boundary of Pa:c~l 2
(known as Tract No.1 shown above) for 81.13 feet to the TRUE PO~l OF
BEG~-~'-ilNG;
Tllence North 340 25'55" East for 408.27 feet to a point en the boundary
betWeen Parcels -.I 1 and 4- of 1'lagic Valley Foods Parcel Survey,
Instrument Num-ber 418235 , Recorded J\t1ay 3, 1995;
Thence South 760 04'36" WeSt along the boundary of Parcd 1 and 4- for 3C.
teet to a pOUlt;
Tnence South 340 25'55" Wes~ for 381.87 feet to a point on the East boundary
of Pared 2 (known as Tracr. No.1 shown above);
Tnence South 44028'42" East along the East boundary of Pa.rc~l 2 (known
Trac: No.1 sno"W-, above) for 20..38 feet to the TRUE PO~-r OF
BEG~N1j)JG.
l1TILITY E.-\SE~IE~l (S.AJ.',aT..A..~ Y SEW"E.R)
Commencing at the Southeas~ corner of Parcel 2 (known as Trac: No.1 shown
above); the:lc~ Nc~h 28'42" WeSt along the Eas~ boundaz:1" of Parcel
(kuow-n as T :ac: No.1 shown above) for 81.23 feet to a point; thence North
340 :5' 55" East for 408.27 feet ~o a point on ~he boundary betWeen Par::~ls 1 and
4 of 2YIagic '\/alley Focc.s P~cel Survey, Inst:-ument Numbe:- 413235, rec:Jrdec
lvlay 3 , 1995, and the TRlIE PONT OF BEG~NlliG;
The:lce continuhJ.g Nor:h 340 25'55" East for 88.91 feet to a point on the
bounc.a.-j be~-een. Parcels 4 a..fld 5 or YIagic Valley Foods Parcel Survey,
bst:ume:lt Number 413235 , recorded :\'lay 3, 1995 and the 1/16 sec-..ion
line;
Tne:lce ).;orth 00 11'27" Eas!. for 20.70 feet along the 1/16 sec:ion line to a point
on the E:lSt~:-:1 Idaho Railroad :ig t or way;
T!1e:lc~ South +5~31'18" Wes~ along the :ailroad right of way for 43.41 feet to
a poInt;
The:lce South 340 25'55" West for 85.39 fe~t on the bound.4.rf betWee:l Parcels
4 and 5 to a ooint:;
...
Thence );o~h i6O ':4'36" East for 3C.1': fee: along the boundarf betWee:l Parcels
4- and 5 to the TRtTE PO~l OF BEGIN'NLNG.
-+:'
(CON~uED)
EXHiBIT It
- /
PAGLLOF
Policy No.: C 385519
Order No.10650
SCHEDULE C
(CONTINUED)
(P AGE 7 OF
UI1LITY EASE~!ENl (SANIT A:R Y SEWER)
Commencing at the Southeast comer of Parcel 2 (known as Tract No.1 shown
above); thence North 440 28'42" West along' the East boundary of Parcel 2
(known as Tract No.1 shown above) for 81.23 feet to a pomt; thence North
34025'55" East for 497.18 feet to a point on the boundary betWeen Parcels 4 and
5 of Magic Valley Foods Parcel Survey, InSi.:i:1ID.ent Number 418235, recorded
May 3, 1995, and the 1/J6 section line which shall be the TRtJE POINT OFBEGINN1NG;
Thence continuing North 34025'55" East for 76.54 feet to a point on the South
bound~"Y of the Eastern Idaho Railroad right of way;
Then~ South 45031'18" West along the railroad right of way for 60.56fee! to
a point on the 1/16 section line;
Thence South 00 11'27" WeSt for 20.70 feet along the 1/16 section line to the
TRtTE POINi OF ~EGINNrN"G.
- ~, -
EXHIBIT ;J -
PAG OF 7---
--" ..
LEASE A REE?\1ENT
THIS LEA.SE AGREEMENT ("Lease If) is made and entered into as of this 25 th day of
September, 1995 , by and bern-r~n Magic Valley Foods,-Inc., an Idaho corporation having a place
of business at Rupert, Idaho (the "Landlord"), and Rupert Cogeneration Panners, Ltd., a
Colorado limited parmership and/or assigns, qualified to do business in the State of Idaho, having
an address of 71 Allen Stteet, Building A, Rutland, VT 05701-4570 (the "Tenant ), (individually
a "P~" and collectively the "Panies If
).
BEQIALS.
WHEREAS, the T enam desires to lease and the Landlord desires to rent space at the Landlord'
propeny located at Rupert, Idaho.
NOW THEREFORE, it is mumally agreed by and bewe:n the Tenant and the Landlord as
follows:
Descriudon ofj..eased Area. In exchange for the payment of rent and/or performance of
the promises made by the Tenant in this Lease, the Landlord leases to Tenant, and the
Tenant agrees to rent from Landlord, space adjacent to Magic Valley food's potato
processing facility property (the "Plant ) which is siroated on real property described
located at Rupert, Idaho. The Leased .Area is more specifically described in Exhibit A
attached hereto and incorporated herein by this reference (hereinafter the "Leased Area It
),.
Term oLlease
The Tenant shall have the right to occupy and use the Leased Area, together with
the right to use in common with the Plant, the ingress and egress to the Leased
Area, for a period commencing on October 1, 1995 through the Operations Date
(as defIDed in the Thermal Energy Service Agre:ment by and bern-re:n the Panies
hereto dated as of August' 1, 1995 (the "ESA")). This Lease shall then fon
coterminous with the tWenty (20) year term of the ESA.
In the event ,this Agre:ment terminates either by its own terms or after the
anniversary date of the nine~rnh (19th) year, pursuant to written notice by either
Pany, then the Tenant shall be required within six (6) months from the termination.
of this Agre:ment to remove all equipment and other improvements from the
Facility site, at its expense; and the Parmership shall restore the Facility site to its
condition prior to the lease of the site to the Parmership.
. 3.cr . Tne Tenant shall pay an annual r::1!.a1 to the Landlord
in the amount of ten and OOIlOOth dolIars (S10.00) per year payable in advance as of the
anniversary of this Lease. Tenant shall pay all real and personal property taxes assessed
EXHIBIT A-2
~...,...
. 7.
against the improvementS construc~ed or -placed by Tenant on the Leased Area and shaH
pay for all utilities used or consumed by Tenant in and on the Leased Area during the tenn
of the Lease. Tenant shall pay an real property taxes assessed against the Leased Area.
including any assessed against ~e=nen!S, improvements and bettennents existing as of the
date of this Lease.
~.
If the Landlord allows the Tenant to continue to occupy the Leased Area
after the expiration of the term of this Lease, without any express agreement as to such
, occupancy, then such holding over shaH be considered as a year-to-year tenancy subject
. to all terms and conditions of this Lease, as long as the Tenant continues to pay the annual
rental in advance and in an amount equal to the rental required by this Lease. None of the
terms of this Paragraph 4 , howeve:. shall be considered as an assur4l1C: to the Tenant that
it may continue oo:upancy of the Leased Area after the expiration of the term of this
Lease, nor as an extension of the term of this Lease by the Landlord on any basis, nor as
a waiver of any of the Landlord's rights to term;n~te this Lease and re~nrer the Leased
Area. Under any circum.s!ance whe:eby the Party identified as MVF under the ESA may
acquire or have the right to operate all or any part of Facility (as defIned in the ESA), then
the Landlord under this uase shall have a corresponding right to enter the Uased .Area
for purposes consistent with the ESA.
No payment of money by the Tenant to the
Landlord subsequent to the termination of this Lease for any reason, or after the giving
of any norice (other than a demand for payment of money) by the Landlord to the Tenant
shall reinstate, continue, or extend the terms of this Lease or affect any notic: given to the
Tenant prior to the payment of such money. The Landlord shall have the right to rec:ive
and coHeet any sum of rent or other sums due under the terms of this Lease without
waiving, changing, or affecting in any manner the effect of any norice previously given,
pending suit, or judgment previously entered.
Acceptance oU-eased Area The taking possession of the Leased Area by the Tenant shall
be conclusive evidence as against the Tenant that the Leased Area was in good and
satisfactory condition when possession was taken.
Use o~ased Area
The Tenant agr~s to use the Leased Area in a careful, safe, and proper manner for
and limited to the purposes of constructing, installing, owning, and operating its
cogeneration facility (the "Facility ) as provided for in the ESA. Tne Te~nt
further agre~s that it will not use or pennit the use of the uased Area for any
purpose prohibited by the,laws of the United States or the State of Idaho or the
ordinances of the City of Rupert or inconsistent with the terms of the ESA.
: 10.
11.
Tne Tenant a~re:s not to commit or allow to be commicred anv nuisance or other
act agains! public policy or which may distUrb the quiet enjoyment of the Plant.
Alterations . The Tenant shall use the Leased Area in a reasonable and r:soonsible manner
and shall nor alter, repair, or change it without the written consent of the Landlord, except
that Tenant may make all modification nec:ssary to use the Uased Area for the purposes
of carrying out and performing the terms of the ESA.
OuielEniovrnent..m:.Leased Area. The Landlord agre:s that~ as long as the Tenant ke:ps
and performs each and every promise and obligation required or it under the terms of this
Lease and the ESA, the L3ndiord shall warrant and defend the Tenant s right to quietly
enjoy the Leased Area without hindrance or molestation by the Landlord or by any other
person lav;fully claiming the Leased .Area, subject to the promises, agreementS, terms,
provisions, and conditions of this Lease and of all mongages to which the Leased Area is
now subject or may be or become subj~t and subordinate to in the furore.
~.
Ex~t't as modified pursuant to the term of the ESA~ the Tenant agrees to keep
the Leased .AJea in as good order, condition, and repair as when the same was entered
upon by the Tenant, loss by fire (unless caused by the neglige~ of the Tenant, itS agents
or employ~s acting within the course and scope of their employment), or ordinary wear
excepted. All damage or injury to the Leased Area and to itS fixtUres , glass,
appurtenances, and equipment, or to the Plant or to its fixrores, glass, appunenances, and
equipment caused by the Tenant moving property in or out of the Leased Area or over and
through any part of the Plant, or by installation or removal of machinery, equipment, or
fIXtures or other property, or from any other cause of any other kind or natUre due to
carelessness, omission, neglect, improper conduct, or other cause of the Tenant, itS agent,
employees, or invi!eA-s, shall be repaired, restored, or replac::d promptly by the Tenant
its sale cost, risk, and expense and to the satisfaction of the Landlord. All such repairs,
restorations, and replacements shall be of a quality and class equal to the original work or
installation and shall be done in a good and workmanlike manner.
11.1 The Tenant a~s that it shall not hold, or attemDt to hold, the Lmdlord liable for
..
any loss, damage, or injury to persons, property, or business caused by any act or
negligence or the Tenant, or its agents , employe--s, or invitees, or other persons
in or about the Leased Area or the Plant, or caused by gas, smoke, rain. snow
defe:tive electrical wiring, or by breakage, overflowing or le2.kage of water t
stearn, or sewer pipes, or heating or plumbing fIXtUres, or caused in any manner,
except in the case of the willful act or neglect of the Landlord. its age:1tS, or
e:nploye:s. The Landlord shall assume responsibility for such loss, damage. or
injury to persons, property, or business only in the case of its negligence or that
...
13.
of its agents or employe:s. In all other cases, the Tenant shan assume
responsibility for such loss, damage, or injury.
11.1 The Te:1aIl! agre:s to indemnify, defend, and save harmless the Landlord from and
against all claims, suits, and liability for: (i) damage, costs, and expenses resulring
from or on account or any breach or nonperformance of any agr~men! to be
perform~ by the Tenant hereunder; and (ii) any injury to the person or property
rightfully in the Leased Area or in the Plant for any purposes; where such injury
is caused by the neglige:xe or misconduct of the Tenant, its agents, employees , or
by the Tenant s failure to comply with laws or ordinances or governmental "orders
of any kind or any of the rules and regulations provided for in this Lease or under
the ESA.
11.3 At all rimes during the Lease term, T enam shall maintain in full fore:: and effect
at its sale cost and expense, property t caSualty and liability insurance on the
equipment and liability insurance: (i) for its delivery, possession, operation,
monitoring and servicing of the Facility; (ii) its other undertakings pursuant to the
ESA; and, (iii) the conduct of its business on the Premises.
11.At all times during the Inse Term, Landlord shall maintain in full fore:: and
effect, at its sale cost and expense , levels of insurance consistent with the
provisions set forth in the ESA. MVF shall add the Tenant as an additional
insured on each such insurance policy.
12.Liens . Upon and after the date of this Lease, the Tenant shall pay promptly all debts
incurred and shall satisfy all liens in respect to the coDSnuction, alteration, and repair
and on the Leased Area for which the Tenant is responsible , and shall indemnify the
Landlord against all claims and charges, including attorneys ' fe:s incurred by the Landlord
in connection therewith. The Tenant shall have no authority whatsoever to bind the
~dlord or the Landlord's property interestS except as specifically provided in the ESA.
Dama~e ~ir~ or Other CasuaIn:
13.If the Leased Area or the Plant shall be damaged by fIre or other casualty and
such damage shall be so great thAt a competent architect in good standing in the
Rupert area and selected by the Landlord shall cenify in writing to the Landlord
and TeD2ll! that the Leased Area~ with the exercise of reasonable diligence, cannot
be made fit for occupancy within eighte:n (18) months from the archi!~t
inspection, then the Landlord may re-enter and take possession of the Leased Area
and terminate this Lease. The Tenant shall pay rent~ duly apportioned, up the time
of such termination of this Lease.
15.
13.
13.
14.
.. j.-
If the damage shan be of such a degre: that the architect so selected shall certify
that the Leased Area can be made tenantable within eight~n (18) months from the
architect s inspection, then the Tenant shalI repair the damage with all reasonable
speed; and the rent shall be abated only for the period during which the Tenant
shall be deprived of the use of the Leased Area by reason of such damage and
repair thereof.
If the Leased Area shall be slightly damaged by fU"e or other casualty but not
sufficiently to render the same untenantable, the Tenant, after receiving notice of
the occurrence thereof, shall repair the damage with reasonable prompmess; but
in such event there shaH be no abatement of the rent.
If any fU"e or casu.aIty damage to the Leased Area or other pans of the Plant shall
ha ve Wwn caused by the negligence or misconduct of the Tenant, its agents,
employees or invitees, the Tenant shall be liable to the Landlord for the costs of
making the repairs necessitated by such damage; and the Tenant shall be
responsible for continuing to pay rent at the then-existing rent rate.
Eminent Domain . If any pan of the Leased Area shall be taken for a public or quasi-
public use by right of eminent domain, or transferred by agr~ment in conn~tion with
such public or quasi-public use, with or without any condemnation action or proceeding
being institUted, this Lease shall termirnte as of the date title shall vest in the condemnor.
All compensation or damages awarded upon such taking or transfer related to the real
property shall go to the Landlord. All compensation or damages awarded upon such
taking or transfer related to improvementS by the Tenant on the real propeny shall go to
the Tenant.
Encumbrances
15.
15.
Tenant expressly reserves the right at any time to place encumbrances on and
against the Uased Area as pan of the consttUcnon and permanent fInancing of the
Plant.
The Landlord shall have the right to sell,. assign, or transfer this Lease upon the
condition that in such event this Lease shall remain in full force and effect,. subject
to the performance by the Tenant of all of the terms, promises, and conditions
which the Tenant is obligated to perform he:-eunder or pursuant to the terms of the
ESA. Upon any such sale , assignment, or transfer, other than merely as a
security, the Tenant agrees to look solely to the purchaser, assigne~, or transferee
with re~t to a11 matters in corlne""wtion with this Lease; and the Landlord shan be
released from any further liability or obligations under this Lease.
,.., .".-.....
18.
16.f'T;~(1 Tnis A2re~:nent shall not be asslszned or any securitY interest
granted 'Nithout the wrine~ approval of the other parry, such approval not unreasonably
\\.ithheld; provided, however, Tenant may assign, or grant a security interest in, its interest
in this Le3.Se to Lender under the fmancing or any other financing extended to Buyer in
connection with the Facility without the consent of Seller, and Seller shall accept
performance from Lender, its designe:, or any person acquiring Buyer s interest on
foreclosure of such security interest or any transfer in lieu thereof.
17.
17.Any assignment by the Tenant for the benefit of creditors or operation of law shaH
not be effective to transfer any rightS under this. Lease to the assigne-: without the
prior written consent of the Landlord.
17.If at any time during the term of this Lease there shall be flied by or against the
Tenant in any court, pursuant to any StatUte either of the United States or of any
state, a petition in bankruptcy or insolvency of or for reorga.n;7~tion or for the
appointment of a ~eiver or trUStea- of all or a portion of the Tenant s property,
or if the Tenant ma..1.ces an assignment for the benefit of creditors, the Tenant shall
have breached this Lease. In such an event the Landlord shall have the rightS
accorded to Magic Yaney Foods, Inc. under the ESA.
17.If at any time during the tenD of this Lease there shall be flied by or against the
Landlord in any coun, pursuant to any statUte either of the United Scates or of any
state, a petition in bankruptcy or insolvency of or for reorganization or for the
appoinnnent of a r=iver or of all or a ponion of the Landlord's property,
or if the Landlord makes an assignment for the benefit of creditors, the Landlord
shall have breached this Lease. In such an event the Tenant shall have the rights
accorded to the P:lJ.-mership (as derIDed in the ESA) under the ESA.
18.If a Parry breaches all or any material portion of this Lease or fails to perform any
of itS material obligations required under this Lease , and if such default is not
cured within nine~ (90) days thereof, or if the defaulting pany has not begun
dilige~t and prude::! measures to cure the default satisfactory to the non-defaulting
parry the:!, the pe:formmg parry shall serve: the nonperforming party with a \Vrirren
notice specifying the narure of the default and giving the nonperfonning parry
thirLY (30) days in which to corre~t or remedy any default. If the default or
omission compla~ed of is of a narure which cannot be completely cured or
remedied , the te::-:jnation shall be stayed as long as the nonperforming parry is
pursuing diligently the curing or the default and can demonstrate th~t the default
can be c;Jred withi:1 a reasonable period or time. In the eve:1t the nonperforming
---
19.
"'----'-
party has nor cured the default within a thirty (30) day period or diligently
commenced action to remedy such default, the: perfonning party shall have the
rights afforded to it under the ESA
18.If the Tenant fails to vacate the Leased Area after rec:iving notice: of termination
and continues to be delinquent in the: payment of rem or other sums due under the
tenDS of this Lease, permits execution or attachment to be issued upon it or any o
this property whereupon the Le3sed Area shall be taken or occupied or attempted
to be occupied or taken by someone other than the Tenant, or if the Tenant shall
abandon or vacate the Leased Area before the end of the term of this Lease, then
the L1ndlord, upon the occurrence of any of these events, shall have the right to
re-enter and repossess the Leased Area without funher notic: or demand and with
?r without legal proc-~ings using such action or means as may be necessary to
secure possession and to remove therefrom any personal property belonging to the
Tenant, all without prejudice to any claim for rent or for damages on account of
the breach of this Lease by the Tenant and without being guilty of any manner of
trespass or forcible entry or detainer or incurring any other liability.
18.In the event of cancellation or termin~rion based upon default by the Tenant or re-
entry of the L=ased .Area by the LandIord through summ.ary pr~~ings, the
Tenant shall rern~iTl liable for the rent reserved in this Lease, plus the reasonable
cost of obtaining possession and of any repairs and alterations necessary to restore
the property to its origiDaI state. The re-emry, taking of possession, alteration, or
repair of the Leased Area by the Landlord shall not be construed or operate to
release the Tenant from liability as set forth herein or under the ESA.
18.In the event of anticipated breach by the Tenant of any of its promises or
obligations under this Lease, the Landlord shall have the right to se~k injunctive
relief and the right to invoke any remedy allowed by law or in equity as if re~ntty ,
summary proc:~dings, and other remedies were not provided for in this Lease.
The provision of this Uase of any panicular remedy shall not preclude the
Landlord from any of the remedies available to it, either by law or in equity. The
foregoing remedies and rights of the Landlord are cumulative. If either Party to
this Lease shall require any attorney to enforce its rights or obligations hereunder
the prevailing Pany shall be entitled to ~ive from the othe: Party the reasonable
attorneys I fe:s incurred in procuring its rights hereunder.
.. W . No act or thing done by the Landlord or its agentS
during the term of this Lease shall be de:med an acceptance of a surrender or the Leased
Area, and no a2:re:ment to acc~~t a surrender of the Leased Area shall be valid unless
made in writing and signed by the Landlord. No provisions of this Lease shall be deemed
to have be:n waived by the Landlord unless such waiver is in writing and signed by the
Landlord.
20.Surrender oLPossessio~. The Tenant agre:s to vacate and surrender to the Landlord
possession of the Leased Area at the expiration or termination of this Lease, by lapse of
time or otherwise, in as good a condition as when the Tenant occupied the same at the
commencement of the: term, excepting only.ordinary wear and deterioration, or damage
by the elements (occurring without the fault of the Tenant or other persons pennitted
the Tenant to occupy or enter the Leased Area or any part thereot), or by act of God,
~rrection, riot, invasion or commotion, or military or usurped power.
21.Sewer SVS~
21.1 Landlord agre:s to provide Tenant with all access necessary to facilitate sewer
system and Storm drain tie-ins and rights-of-way necessary to operate the Facility
in a manner consistent with the terms of the ESA. Tenant shall pay for all tie-
costs and any incremental sewage costs related to the operation of the Facility.
21.2 Landlord shall assist Tenant is obtaining sewer book-up permits from the .City of .
Rupert. Tenant shall pay for any waste water disposal not covered by existing
Landlord permits.
22.Cons~!ion Access. Landlord shall provide Tenant full and complete access to the
Leased Area during the construction and operations of the Facility. Landlord shall provide
wrinen instrUctions to Tenant concerning traffic flow and parking during constrUction and
operations so as not to interfere with Landlord's operations. Lmdlord shall also designate
a mumally acc..."tabie lay-down area at the site during CODSttUcrion so that Tenant will not
interfere with Landlord's ongoing operations.
23.
. 23.Landlord agre:s to allow Tenant to sample soil in the Leased Area. lAndlord also
agr~s to provide a clean site to Tenant for the construction of the Facility. The
exact boundaries of the Leased Area may be moved to avoid any problem areas
with cont~m;rnted soil or other environmental issues if discovered. Clean site shall
mean that the Leased Area shall not contain any pollutant, toxic substance,
hazardous substance, hazardous waste or hazardous material as defined in or
regulated pursuant to any federal, SUte , or local environmental law or regulation
existing as of the date hereof.
~ .,
-1.-Landlord agr~s to indemnify and hold Tenant harmless from any and all demands
claims, liabiliries, expenses, costS, obligations, causes of action, damages, losses,
misrepresentations, and omissions of every kind and naron~ related to any
environmental or hazardous waste issue conc:ming the Leased Area and resultin2
from operation or owne:ship of the Leased Area prior to Tenant's occupation of the
Leased Area. Tenant agre:s to indemnify and hold hannless Landlord from any
26.
and all demands, claims, liabilities, expenses, coStS, obligations, causes of action,
damages, losses, misrepresentations, and omissions of every kind and narore
related to any environmental issues conc:rning the Leased Area caused by Tenant.
23.Landlord agre=s to enter into a Hazardous Waste Indemnity Agre:ment with
Tenant and Tenant s Lender.
24.!ransmission Line an~ Access. Landlord shall allow. for and provide Tenant.
. ingress and egress and easementS for all utility providers/purchasers to the Leased. Area.
25.
~.
All notices, demands, or other writing required to be given by this Lease shall
be deemed to have be-.n fully given, made, or sent when made in wri~g and deposited
in the U. s. Mail, certified or registered, postage prepaid, and addressed as follows:
If to Landlord:
Magic Valley Foods, Inc.
Arm: B ill Schow
O. Box 475
Rupert, ill 83350
If to Tenant:
Rupert Management, Inc.
c!o L. Douglas Barba
Catamount Energy Corporation
71 Allen Stre:t, Building A
Rutland, VT 05701-4570
The address to which ~y notice, demand, or other writing may be given, made, or sent to
either Party may be changed by \Vritten notice given by such Party pursuant to this Paragraph
25.
~.
If under present or future laws effective during the term of this Lease any
clause or provision of this Lease is invalid or unenforceable, it is the intent of the Parries that
the remaining provisions of this Lease shall not be affected thereby. The captions of me
paragraphs are -added as a matter of convemenc: only and shall not be considered in
construing any provision of this Lease. The word "Tenant" and the words "" or "its" used
\1,ith reference to Tenant shall apply to individuals (male or female), co-pannerships, firms,
asso~ia!ions, and corporations, whichever is appropriate.
- /.
A .
; ~
. The Panies acknowledge and agree that no amendment
modificatio~ or eXtension of this Lease shall be valid or binding unless expressed in 'Nriting
and executed by the Parties hereto in the same manner as the execution of this Lease.
28.Successors . All terms, conditions, and ,agreements to be kept and performed by the Panies
hereto shall be applicable to and binding upon their respective heirs, personal representatives
successors and assilZIlS.
29.. a The Landlord agrees at any time and from time to time, after \VI'itten
request by the Tenant, to execute, acknowledge, and deliver to the Tenant an estoppel
cenificare c:rtifying (to the extent the Undlord believes the same to be true) that this Lease
is unmodified and in full force and effect (or if there have been modifications, that the same
is in full force and effect as modified, and stating the modifications) that there have been no
defaults thereunder by the Landlord or the Tenant (or if there have been defaults, setting
forth the natUre thereof) the date to which the rentals and other charges have bee~ paid and
accounted for, if any, the Landlord claims no breach and such other matters as may be
reasonably required by the Tenant, its mortgagees, or any potential purchaser of the Leased
Area, it being intended that any such statement delivered pursuant to this section may be
relied upon
by any prospective purchaser of ail or any portion of Tenant's interest herein, or a
holder of any mortgage or deed of trUSt encumbering any portion of the Leased A.rea.
IN \\11TNESS \\111EREOF, the Panies hereto have executed this Lease as of the day and year fIrst
above \\ T1nen.
By:
ey oods, Inc. (Landlord)
oratIon
Its:
Rupert Manageme:lt, Inc.
General Partner for Rupert Cogeneration Partners, Ltd. (Tenant)
a Colorado limited ~ership
By: fn~/L!t. o QC1J..(lL
Its: PRESIDENT
Exhibit A
Leased Area
Beginning at the Southwest comer of Section 29 (monumented by a 5/8 inch rebar); thence South
89056'00: East for 1327.92 feet along the South section line to the Southeast comer of the SW 114
SWI/4 (monumented by a 5/8 inch rebar); thence North 00 11 '27" East for 305.32 feet along the East
iine of the SW1/4 to an existing 1/2 inch rebar on the Nonh right of way of State Highway 24;
thence along a curve to the right with a central angle of 50 24'08", a radius of 1392.40 feet, and an
arc length of 131.29 feet and a chord distance of 131.24 feet with a chord bearing of South 570 18'27"
West along said highway right of way to a concrete high'h"aY monument; thence North 18005'05"
West for 358.62 feet to a 1/2 inch rebar which shall be the TRUE POINT OF BEGINNING.
Thence South 450 31 '18" West for 322.67 feet to a 1/2 inch rebar,
Thence North 44 028'42" West for 135.00 feet to a 112 inch rebar,
Thence North 45 31 '18" East for 322.67 East for 322.67 fee! to a 1/2 inch rebar;
Thence South 44 028'42" East for 135.00 feet to the TRUE POIN!" OF BEGINNlNG.
AMENDI\rIENT OF LEASE AGREEMENT
THIS AMENDNIENT OF LEt\SE AGREEMEl~T (this "Amendment of
Lease ), is made as of this 21 day of December, 1995 betWeen Magic Valley Foods,
Inc., an Idaho corporation having a place of business at Rupert, Idaho (the
Landlord"), and Rupert Cogeneration Panners, Ltd." a Colorado liInited parmership
and/or assigns, qualified to do business in the State of Idaho, having an address of 71
Allen Street, Building A, Rutland, Vermont 05701-4570 (the "Tenant"
RECITALS:
WHEREAS, the Landlord is the owner of certain land located at Rupert
Idaho, as more panicularly described in Exhibit A attached hereto and made a parr
hereof (the "Leased Area ); and
. WHEREAS, by that certain lease agreement dated September 25 1995 (the
Lease ), the Landlord leased to the Tenant all of the Leased Area; and
WHEREAS, the Landlord and the Tenant wish to amend the Lease in the
respects hereinafter more panicularly set forth.
NOW, THEREFORE, the Landlord and the Tenant agree to amend the Lease
as follows:1. For the purposes of the Lease , the terms "mortgage " and "leasehold
mortgage " shall include whatever security instruments are used in the locale of the
Leased Area, such as, without limitation, mortgages, deeds of trust, mongage deeds,
security deeds and conditional deeds , as well as fmancing statements , security
agreements and other documentation which the Leasehold Mortgagee (as hereinafter
defIned) may require, and the tenn "Leasehold Mortgagee " shall mean Toronto
Dominion (Texas), Inc. and its successors and assigns.
2. The Tenant and tvery successor and assignee of the Tenant is hereby
given the right by the Landlord in addition to any other rightS herein granted~ without
any requirement to obtain the Landlord's consent, to mortgage or grant a security
interest in the Tenant s interest in the Lease and the Leased Area and any sublease(s)
to Leasehold Mortgagee under one or more leasehold mongage(s) and/or under one or
more purchase money leasehold mongage(s) in connection with any sale(s) of such
interest and assign the Lease and any sublease(s), as collateral security for such
leasehold mongage(s), upon the condition that all rights acquired under such leasehold
mongage(s) shall be subject to each and all of the covenants , conditions and
restrictions set forth in the Lease , and to all rights and interests of the Landlord
therein, none of which covenantS, conditions or restriction is or shall be waived by
the Landlord by reason of the right given so to mortgage or grant a security interest
s~-~z~os. :
in the Tenant's interest in the Lease and the Leased Area , except as expressly
provided herein.3. If the Tenant and/or the Tenant s successors and assignees (including,
without limi!2.tion, any sublessee of the Tenant. but only with the Tenant s prior
consent) shall mortgage or grant a security interest in the Tenant s interest in the
Lease and the Leased Area, so long as such leasehold mortgage shall remain
, unsatisfied of record or until written notice or satisfaction is given by the Leasehold
Mortgagee to the Landlord, the following provisions shall apply (in respect of such
leasehold mortgage and of any other leasehold mortgages which also comp~y with theabove):
(a) There shall be no cancellation, SUlTender, acceptance of
surrender, amendment or modification of the Lease by joint action of the
Landlord and the Tenant or by the Tenant alone, without in each case the prior
consent in writing of the Leasehold Mortgagee, nor shall any merger result
from the acquisition by, or devolution upon, anyone entity of the fee and the
leasehold eS!2.tes in the Leased Area.
(b) The Landlord shall, upon serving the Tenant with any notice
other communication, whether of default or any other matter, simultaneously
serve a copy of such notice upon the Leasehold Mortgagee in the manner
provided in the Lease for the giving of notices. Any such notice shall be sent
to the Leasehold Mort2:a2:ee at 909 Fannin, Suite 1700, Houston, Texas 77010,
Attn.: Manager, Agency (telecopy number (713) 951-9921 , conf1Ill1ation
telephone number (713) 653-8235), or to such other address as shall be
provided to the Landlord by the Leasehold Mortgagee.
(c) Anything herein contained notWithstanding, if any default shall
occur which, pursuant to any provision of the Lease, entitles the Landlord to
terminate the Lease, and if before the expiration of 30 days from the date
service of notice of terminarion upon such Leasehold Mortgagee , such
Leasehold Mortgagee shall have notified the Landlord of its desire to nullify
such notice and shall have agreed to payor cause to be paid to the Landlord
within 30 days all rent and other paymentS in the Lease provided for and then
in default, and shall have agreed to commence or caused to be commenced the
work of complying with all of the other requirementS of the Lease, if any are
then in default, and shall prosecute or cause the prosecution of same to
completion with reasonable diligence; then in such event the Landlord shall not
be entitled to terminate the Lease and any notice of termination theretofore
given shall be void and of no effect.
(d) If at any time the Tenant. anyone claiming by, through or under
the Tenant or a trustee in banlauptcy shall have the right to reject the Lease
pursuant to either Section 365(a) of the Bankruptcy Code of the United States,
11 U.A. Section 365(a) or a succ~ssor statute, then the Leasehold
Mort2:a2:ee shall have the exclusive rig:ht to exercise said ri2:ht and the Tenant
- - ....
hereby assi2:ns said ri2:hr to the Leasehoid Mortgagee. If at any time the
.. ... ....
S"n-1-620C3. :.
Landlord, anvone holdin~ bv, throu~h or under the Landlord or a truste~ in
'" "- '"
bankruptcy shall elect to reject the Lease pursuant to Section 365(h)(1) of the
Bankruprcy Code of the United States, 11 U.A. Section 365(11)(1), or
successor statUte , thereby giving to the Tenant the right to elect to treat the
Lease as terminated pursuant to Section 365(h)(I) of the Bankruptcy Code of
the United States, 11 U.A. Section 365(11)(1), or a successor statUte, then
the Leasehold Mortgagee shall have the exclusive right to exercise said right
and the Tenant hereby assigns said right to the Leasehold Mortgagee. If either
of the assignmentS provided for in this Subuaramuh (ill are held to be
unenforceable, then the Tenant, anyone claiming by, through or under the
Tenant or a troste~ in bankruptcy shall not exercise rights purportedly assigned
to the Leasehold Mortgagee without the prior consent of the Leasehold
Mortgagee and if the Leasehold Mortgagee shall give such consent, the
Tenant anyone claiming by, through or under th~ Tenant or a tI1lste~ in
bankruptcy shall promptly exercise either of said rights. All statUtory
references in this SubDaramuh (d)shall be as the same may be renumbered.
(e) If the Lease is tenninated by operation of applicable law or
otherwise (for example as the result of a rejection of the Lease in a bankruptcy
proceeding or a change in a statUte or ordinance) notwithstanding (i) any notice
of tenninarion of the Lease by the Landlord becoming null and void as
provided in Subparagraph (c) or (ii) the Leasehold Mortgagee otherwise
satisfying the requirements of this Amendment of Lease for the Leasehold
~fortgagee to become the Tenant, the Leasehold Mortgagee shall have the
right to have the Landlord enter into a new lease (the "New Lease ) of the
Leased Area with the Leasehold Mortgagee or its nominee or designee in
accordance with the fonowing provisions:
(i) The Leasehold Mortgagee or its nomine~ or designee
shall be entitled to the New Lease if the Leasehold Mortgagee shall
make written request upon the Landlord for such New Lease on or
before the date which is 30 days after the date on which the Leasehold
MorrE:a~ee shall have received the notice from the Landlord of such
"- ....
tennination and if such written request' is accompanied by the
Leasehold Mortgagee' s agre~ment to pay to the Landlord within
days after the execution and delivery of the New Lease the sums then
due to the Landlord under the Lease.
(ii) The New Lease shall be for what would ha ve be~r1 the
remainder of the tenn if the Lease had not be~n terminated, effective as
of the date of such terinination, at the rent and upon the tenns,
provisions~ covenants and agreementS as contained in the Lease
including all rights and options contained in the Lease.
(ill) The Leasehold Mortgagee or its nomine~ or designe~ as
tenant under the New Lease shall have the same right, tide and interest
in and to the buildin~s and imDrovements erected on the Leased Area
"-
as the Tenant had under the Lease.
S"I'M-620C:. :
...
-:J-
(iv) The conveyance by the Leasehold Mortgagee or its nominee
or designee of its interest as tenant under the New Lease and the
LeJsed AreJ shall not require the consent or the Landlord or constitUte
a breach of any provision of or a default under the New Lease.
(f) The Leasehold Mortgagee shall be given notice of any
arbicration or other proceeding or dispute by or betWeen the Landlord and the
Tenant, and shall have the right to intervene therein and be made a party to
any such arbitration or other proceeding. In the event that the Leasehold
Mortgagee intervenes in any such arbitration or proceeding, such intervention
shall be deemed consent by the Leasehold Mortgagee to be bound by the
award or decision in such arbitration or proceeding.
(g)
Any award or payment in condemnation or eminent domain in
respect or the Leased Area shall be paid to the Leasehold Mortgagee to be
applied in the manner specified in the leasehold mortgage to the extent the
Tenant has any right to such award.
(h) No flIe or casualty loss claims shall be settled and no
agreementS will be made in respect of any award or payment in condemnation
or eminent domain without in each case the prior written consent of the
Leasehold Nfortgagee, which consent shall not be unreasonably wirhheld.
(i) Until such time as the Leasehold Mortgagee shall give notice
the Landlord stating that an Event of Default under the Credit Agreement has
occurred and that it is exercising its right to become the Tenant under the
Lease, no liability for the payment of rent or the performance of any of the
Tenant s covenantS and J2TeementS under the Lease shall attach to or be
imposed upon the Leasehold Mortgagee ! all such liability being hereby
expressly waived by the Landlord, and if the Leasehold Mortgagee or its
nominee or designee becomes the Tenant under the Lease , all of the
obligations and liabilities of the Leasehold Mortgagee or its nominee
- -
designee shall cease and tenninate upon assigmnent of the Lease
abandonment of the Leased Area.
G) The Landlord! within 10 days after a request in writing by the
Tenant or the Leasehold Mortgagee, shall furnish a written statement:, duly
acknowledged, that the Lease is in full force and effect and that there are
defaults thereunder by the Tenant, or if there are any defaults , such statement
shaH specify the defaults the Landlord claims exist.
(k) N orwithsunding any provision to the contrary, foreclosure of a
leasehold mortgage or any sale or the Tenant s interest in the Lease and the
Leased Area in connection with a foreclosure, whether by judicial proceedings
or by virrue of any power of sale contained in the leasehold mortgage! or any
convevance of the Tenant s interest in the Lease and the Leased Area from the
Tenant to the Leasehold Mortgagee or its nominee or designee bv vinue of
- -
in lieu of foreclosure or other appropriate proceedings. or any conveyance
""---'--
SD1-5~:OS.
the Tenan(s interest in the Lease and the Leased Area by the Leasehold
Mortgage~ or itS nominee or designee, shall not require the consent or
approval of the Landlord or constitUte a breach of any provision of or a default
under the Lease.
(1) If the Leasehold Mongagee or itS nominee or designee takes
possession of the Le3sed Area or acceptS a conveyance of the Tenant s interest
in the Lease and the Leased Area, the Leasehold Mongagee or itS nominee or
designee shall have n9 personal liability for the payment of rent or the
perfonnance of any of the Tenant s covenants and agreements under the Leas~,
but after the assignment of the Lease to another, the assignee shall have
personal liability unless otherwise provided to the contrary in the Lease.
4. If, at any time the Leasehold Mongagee shall succeed to the rightS
the Tenant under the Lease as a result of a default or event of default under the
Leasehold Mongage, and if the Tenant is not then in default under the Lease beyond
the time permitted therein to cure such default: (i). the Lease shall not terminate; (ii)
the Leasehold Mortgagee shall attorn to and recognize the Landlord under the Lease
as the Tenant s Landlord under the Lease, upon the tenns and conditions of the
Lease; and (iii) the Landlord shall accept such attornment and recognize the
Leasehold Mortgagee as the tenant under the Lease. Upon such attornment and
recognition, the Lease shall continue in full force and effect as if it were a direct lease
....
between the Landlord and the Leasehold Mortgagee upon all of the tenTIS , conditions
and covenantS of the Lease.5. The Landlord hereby waives any and all landlord' s lien ~ right of
distraint or levy, which the Landlord may now or hereafter have in all existing and
hereafter acquired tangible and intangible property of the Tenant located at the Leased
Area, including (without limitation) accounts , contract rightS, general intangibles,
documents , instrumentS, chattel paper, inventory, trade fIXtUres, equipment,
machinery, securities, franchise rightS , patentS , trade names and the proceeds and
productS thereof (collectively, the "Col1ateral ) whether for unpaid rent or otherwise
and whether by virtue of the Lease, the landlord-tenant relationship, any possession
thereof, any local~ state or federal law or statute (including, without limitation
Title 11 of the United States Code , as amended), common law doctrine~ or otherwise.
The Landlord agrees that all Collateral is and shall remain personal property and shall
not constirute fIXtUres, notWithstanding any attachment to real property or any other
applicable law or doctrine relating to fIXtUres.6. The Tenant and the Landlord hereby agree that~ without any
accountability or liability to the Landlord or the Tenant, the Leasehold ~Iongagee
may enter on, use and occupy the Leased Area at reasonable times and for a
reasonable period of time for the purposes of repossessing, removing, selling
(including any auction or other sale of Collateral on the Leased Area) or otherv.rise
dealing with the Collateral in accordance with the provisions of the Leasehold
Mortgage (including, without limitation, for inspections and collateral audit and
management purposes), the Unifonn Commercial Code and any other applicable law
(and whether or nor a default existS under the Lease or the Leasehold j\fortgage) so
----
57:-1-052'::C5.
lanQ: as the same is conducted in a reasonable manner with due reQ:ard for the business
retmtation of the Landlord with reasonable advance notice to the Landlord. The
Landlord agrees not to restrict or otherwise interfere with access to, or use of, the
Leased Area by the Leasehold Mortgagee or any other person for the foregoing
purposes. Use or occupancy of the Leased Area by the Leasehold Mortgagee as set
fanh herein shall not constitUte an assumption by the Leasehold Mortgagee of the
Lease or any obligations thereunder.7. N orwithstanding anything to the contrary contained herein, no entity
engaged directly, or indirectly through one or more subsidiaries, in the business in
which the Landlord is currently engaged, shall be an assignee, designee or nominee of
the Leasehold Mortgage without the prior written consent of the Landlord, which
consent shall not be unreasonably withheld or delayed.8. This Amendment of Lease may not be modified or terminated orally,
and constitutes the entire agreement betWeen the parries with respect to the subject
matter hereof.9. The Landlord hereby acknowledges that, as of the date hereof, (i) the
Lease is in full force and effect and, as modified hereby, constitUtes the legal, valid
and binding obligation of the Landlord enforceable against the Landlord in accordance
with its terms; (ii) no notice of default has be~n given under or in connection with the
Lease which has not been cured, and the Landlord has no knowledge of any event
which with notice or lapse of time or both would constitUte a default under the Lease
or any such default which would result from the execution, delivery and perfonnance
of this Amendment of Lease; and (iii) all rent and other payments due from the
Tenant under the Lease are current.
10. Except as expressly amended hereby, the Lease and all of the terms,
covenantS and conditions thereof remain in full force and effect.
IN WITNESS WHEREOF, the parries hereto have caused this Amendment
Lease to be executed the day and year first above written.
LANDLORD:
A. VALLEY FOODS ~ INC.
0 corp
ger L. \JeTIes
President
TENAJ.~T:
RUPERT COGE~ERATION PARTNERS~ LTD.
S~-520C5. :
Colorado limited partnership
By: Rupen Management, Inc., a Delaware corporation,
its . general p
By:rr (tj(!/j~
Name: rnMI( 't. :.6E.N~,,~
Its: P~S',O~-N\
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421688
(2" ,.z.q- 7--do: z
MEMORANDUM OF LEASE(Rupert)
THIS INSTR'CJMENT made and entered into as of the
~ /
day of December 1995 between MAGIC VF~LEY FOODS INC. an Idaho
corporation having a place of business at Glenns Ferry,Idaho
(the " Landlord"), and RUPERT COGENERATION .PARTNERS LTD.
Colorado limited partnership transacting business in the State of
Idaho as RUPERT COGENERATION PARTNERS, LIMITED PARTNERSHIP
(and/or assigns), having an address of 71 Allen Street, Building
A, Rutland, Vermont 05701-4570 (the "Tenant"), collectively the
Parties"
The Parties hereto mutually 'acknowledge and agree that
they have executed a long- Lease Agreement (" Lease
" )
effective as of S~ptember 25,1995, and amended as of the
effective date of this Memorandum, whereby the Landlord leased
the Tenant and the Tenant leased from the Landlord the real
property situate in Minidoka County, State of Idaho, particularly
described as follows:
DESCR:3=::: CN ATTACE:=:D EXHI3::: A
together with appurtenant easements.
The initial te~ of the Lease commenced on October
1995 and no later than midnight on April 7 , 2017.
The respective mail ng addresses of the Parties hereto
are as follows:
-----
MEMOR..!u'ID'CJM OF LE)..SE - 1 G; \Q.IE!IT\O6409\OOl \L!ASl2."€H
- "... ... ".~~~".,~"
Landlord:
Tenant:
----
MEMORANDUM OF L~~E -
Magic Valley Foods, Inc.
P . O. Box 475
Highway 24Rupert, Idaho 83350
Rupert Cogeneration Partners, Ltd.
71 Allen Street, ~uilding ARutland, Vermont 05701-4570
By:
Roc ' r President(a duly authorized officer)
RUPERT COGENE~~TION P~~TNERS / LTD.
dba RUPERT COGE!:-J~RATION PARTNERS,
LIMITED P~~TNERSHIP
By:RUDert Manaaeme~ t / Inc.
Its General Part~e~
By :1 ~ Vv.J~ :j.
Name: l M~~ 1-. SIC.~wf:;i:.
Ti tIe prt.~s t 'D~"",,,(a duly authorized office~)
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..; \a.IEHT\V6oiO9\ COl \~EASE2. .'IE"
, ~~ .
STATE OF IDkqO
) ss.County of
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this
~/~
ay of Dece~er, 1995, before me,SSeY"~a Notary Public in and for said
State, personally appeared Roger L. Jones
,.
known or identified to
me to be the president of MAGIC VALLEY FOODS, INC., the
corporation that executed the within instrument or the person who
executed the instrument on behalf of said corporation, and
acknowledcred to me that such corooration executed the same.
-' ..
IN WITNESS WHEREOF, I have
affix~9, my official seal the day and
f i;p.s,r;~' ab0ve.wri t ten.\ 'U.
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hereunto set my hand and
year in this certificate
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d~ lOa A~ ,/\/",A.Cl
Qbt~~.( Public fer I?aho
Re s ~ a~na a t /~--4J
My commIssion expires
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County of New York
- On this ;22...
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day of December , 1995, before me,
Tfrhlt J. K,i..ru1vtr-..J , a Notary Public in and for saidState, pe:=sonally appeared fVl,q..-ar:.. L, r;ISkN~~'known or
identified to me to be the ~E~)
p~~,-
of RUPERT
~~~AGEMENT, INC., the general partner of RUPERT COGENERP.TION
PFRTNE~S, LTD., a Colorado limited partnership, transacting
.'bu~in~ss . in Idaho as RUPERT COGENER..~TION PARTNERS, LIMITED
/...?
?A:..~TNtR~:..t~_p, the corporation that executed the within instrument
~:/"'": ~
~c.r.:ih~' ;person who executed the instrument on behalf of said
f ~:~ ~ 2orp:c~ati6p as such general partner, and acknowledged to me that
:, :
.~tlch.. .c~~poration executed the same on behalf of said limited
.,' ..
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IN WITNESS WHEREOF, I have hereunto set my hand and
affixed my official seal the day and year in this certificate
fi~st above written.
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Notary Pw,..ri~
Residirlg at
My commission
STATE OF NEW YORK
MEMOR..i\NDUM OF LEASE -
for New ork "I /lIt:w 0((./ v
exp i rQ c::
- -
R J. f"r:LTM.')J
Notaty Pubtk:. State of New Yorl(No. 31~82a1
Qu.tlned In N8W York County )f., ~
Ct)mmtuton ~pt""~~~,l~~2.1!EH
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PARCEL NO.
TOWNSHIP 9 SOUTH, RANGE 24 EAST OF THE BOISE MERlDIAN,
MINIDOKA COUNTY , IDAHO
Section 29:That part of the S\V IA SW IA rTIore particularly described as follows:
Colnn1encing at the Southwest corner of said Section 29. (Nlonumented
by a 5/8 inch rebar); Thence South 890 56'00" East for 1327.92 feet
along the South Section Line to the Southeast corner of the SW l,4SWl,4
(Nlonumenred by a 5/8 inch rebar); Thence North 00 11 '27" East for
305.32 feet along the East line of the SWIASWl,4 to an existing ~ inch
rebar on the North right-of-way of State Highway 24; Thence along
a curve to the right: with a central angle of 50 24'08", a radius of
1392.40 feet, and an arc length of 131.29 feet and a chord distance of
131.24 feet with a chord bearing of South 570 18'27" West along said
highway right-of-way to a con crete highway monument; Thence North
18005'05" West for 358.62 feet to a Y2 inch rebar which shall be the
True Point: of Beginning;
Thence South 45031'18" West for 322.67 feet to a inch rebar;
Thence North 44028'42" West for 135.00 feet to a inch rebar;
Thence North 4Y'31'18" East for 322.67 feet to a inch rebar;
Thence South 440 23' 42" East for 135.00 feet to the True Point of
Beginning.
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EX.H1BtT I~
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EXHIB IT B
P EIDY 1ITTED LIENS
1. Open-End Leasehold De~d of Trust, Security Agre~ment A5signment of Rents , Fi..1:ture Filing
and Financing Statement, dated as of October 15 , 1995 , as amended which was filed in the
Land Records of the County of 1'finidoka, in the State of Idaho , on January 23 , 1996
Inscrument No. 422089.
Liens for current real property taxes and assessments.
Matters referred to on attached Sched~les A and B to Ti tIe
Policy No. C 385519, Order No. 10650
E?(H I S
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FIRST A..;.vlERIC..
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lLE INSL:~-\~CE COlYfP.
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:U.T.~ LE.~SEHOLD FOLIC'
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POLICY 0iO.
ORDER l'iO.
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~ ~~e of Ir!su:~c.:
TORO~10 DOrvII:\4l:0N (TE.x:..;'S), ~C., a Deb.w--:.:-e Corpor:ltlon, no~ pe:-son~lly but acting
in ir.s w!J3.c1t'"v as collatcral ag~!lt for the be:tefit of w~e Lende:-s and itSelf in itS c~:caci~ asJ.
.; .... ..
collare-:al agent._1
, ,
1 ae es-:~!= c r l!:i:er~s-: Ul tne anc. v'trl:C':: 1S e:1c..:moe:-e... t.:J.e u:surec. e~ rust :5:
TR.. ~ CT NO.:1... le:lsehold eS~1:c c:-e:ltea by the Le:lSe and Nle:norancum of Le~e desc:-ib~:::
in the ins1:=~me:J.t noted in arag-..~1Jh 3 i~..mediatdv follo'\;ving.
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TR..\CT ~OS. A~u 4. A,jD "l-rII.ITI- E..\SE.vrE~-rS NOS. 1. 2.4. 5 A~1) ~-: e:lse:!:e:l!
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!'ee:ne:1t d.eSC:1De::1 In tIle lIlS1:run:e:1t notc~ In pa:-:lg:'-:lD!1 ~
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iIT.une~iai:dv following,
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TRA,CT ~O. Ru-oe:-. CO~~:1e:-:lrion P~r::J.e-:3.. L:c.... doing business in Id~ho u:!cc:- -c'::c r:.~Z::c
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RUDe:": Coge:le:-ation P~rt.ne:-s. L:c.. as to the le~se~old eS1:.:ltc c=~:lt~d. bv an un=~~:)r~ed. Le~se
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L:l!:dlo r a.. and RUDer: Coge:te:-:li::on Par:ne:-s.. L!:a, a Color~do li.:.-mted. oa:-:ne:-shio andl or
. ..'" ' ..
assigns, as the T e:1ant.
A yIE.yIOR-~~TI"l?YI OF LE.\SE.. d:ltcd De::~mbe:- 11. 1?'?5 be~.e~n NIa~ic 'iallev Faocs. Inc..
--
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an Idaho cornor:ltion. Lessor/unClord.. and RUDe=:: Cog~ne:":ltion Par::le:"s. Ltd... a Colorado
' -.. - .
limited par:ne:-ship, Lesse~/Te::~nt, re~orded De::~::1be:" 29 , 1995 as Doc".lme:1t ~o. 421685
~1inidok:l Countv re::ords.
(CO~lml..~D)
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Po1i~1 No.: C 385519
Order No.: 10650
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SCHEDuLE ;.
(CON1~l:JED)
TRA.CT NOS. 3. 4 A"~TI tTTIlITI E_-\SENIE~lS NOS. 1. 2. 3. 4. 5 A?'-JTI 6:
Rupert Cogeneration Partners, Ltd., doing business in Idaho under the name Rupe:-t
Cogeneration Partners, Ltd. as to the easements created by a Grant of Easements _\ppurtenant
to Leasehold (Rupert) agreement by Instrument:Dated: Decembe:- 21, 1995
Recorded: Decembe:- 29 1995 as Document No. 421689, NIinidoka County records
Grantors: :Lviagic 'lalley Foods , Inc., an Idaho corporation, and Rolland Jones Potatoes, Inc.
an Idaho corporation
Rupert Cogeneration Partners, Ltd., a Colorado limited partnership transacting
business in the State of Idaho as Rupert Cogeneration Panners, LimitedPartnershiD
...
Grantee:
Consent To Grant Of Easements Appurtenant To Leasehold (Rupe~), dated December 28, 1996
executed by Nlagic 'lalley Foods , Inc., an Idaho corporation, Owner, Rolland Jones Potatoes
Inc., an Idaho corporation, Grantors, Rupert Cogeneration Partners, Ltd., a Colorado limited
parr.nership, transacting business in the State of Idaho as Rupert Cogeneration Partners, Limited
Partnership, Lessee, and John Hancock Nlutual Life Insurance Company, a Ivfassachusetts
corporation, recorded January le 1996 as Document ~o. 421833, Ivlinidoka County records.
, (".("
I: 11 ne InSured. ee 0 rust, aIle. ~~sslgnme!lts :ne:eOI, 1I any, are aeSCrloe as l.O._OVlS:
A.n Open-End Le:lsehold De~d of Trust, Security A.greement
, ..
A..ssignment of Rents and Leases
Fi..\:ture Filing, and Financing Stateme:1t, to secure an indebtedness of S 14 27~, 193.':0 , and any
other amounts as there:n provided, and together "\vith interest and any obligations secured
the:-ebv:
Dated:
TrT...lstor:
""""""""
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December 29 1995 as Document No. 421690 and re.recorded Januar:v 23
1996 as Document No. 422C89 , NIinidoka County records
Oc!obe:- 15, 1995
Rupe:-t Coge:J.e:ation Partners. Ltd.
....
First ..:\rnerican Tide Insurance Company
..
Beneficiar:r: Toronto Dominion (Texas), Inc.
Covering the Leasehold Estate created by the Lease)
Recorded:
Amendment No.1 to aDen-End Leasehold Deed of Tr'ust, SecuritY A"gree~e:J.t Assignment or
... ., '-' ....
Rents Fi.."'Ct"'..lre Filing and Fin3.ncing Statement, d3.ted January 25, 1996, made by Rupe:-t
Coge:J.eration Par!ne:-s, Ltd., a Colorado limited par!ne:-ship (together with itS successors and
assig:ls) Trustor, to Firs! A.
...
'TIe:-ican Title Insurance Company, Truste~, for the benefit of Toronto
Dominion (T ex:lS), Inc., a Dela~'are corporation, not pe:-sonally but acting in itS capacity as
collateral ag~nt for the benefit of cer!~in lende:-s and itself in its capacity as collateral agent
recorded January 31 , 1996 as Document No. 422198 , 1\'Iinidoka County records.- l
' "
,-i ne ana rete!":-e~ to in t~lS .:. 0 ICY 1S esc:-lbe..... as loO OWS:
(SEE SCHEDuLE C)
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~ T.A LOAJ.'i POLICY
SCHEDuLE B
EXCEPTIONS FRON! CO\fER.A.
Policy Number: C 385519
Order Number: 10650
This policy does not insure agains~ loss or damage (and the Company ",-ill not pay costS
attorneys' fe~s or expenses) which arise by reason of:
~--
(a) U nparented mining claims; (b) reservations or exceptions in paterlts or in -\c:.s
authorizing the issuance thereof; (c) water rights, clairr...s or tide to water, ",-he::her or
not the matters excepted under (a), (b), or (c) are shown by the public records.
Ge~eral ta."(es for 1995, are one-half paid and the balance is due and payable, but does
not become delinquent until June 20, 1996.
:; .
Generalra.~es for the year 1996, which are a lien, payable on or before Decembe:- 20
of said year and are not delinque:lt until after said care.
General taxes which mav be assessed and exr.ended on any subsecue:lt roll ror the ta..""C
year 1996 ",-irh respeCt to new irnprovemerlts and the first OCCUpa..T1CY thereof during
1996, ",-hich may not be i.:.,cluded on the regular assessment roll and which are a lien
not ,re:: aue 0 r oa ao e.
...'"'-' .
ODerat.lOn ane. mainte!lan.ce i.rrigation assessments levied bv the Cirr of RuDe:-t.
.... '-' ...
-\ Mor:gage
, _
~ssig!1me:1t of Rents and Se~:urity ..;\.gre~:::nent to secur,e payme!lt of a note
for S4lCC CCC., ~"1d any othe:- a...~cunts as the~ein provided, toge~he:- with int~:-es~
and any other obligations se~.lred thereby:
pril 24, 1995 as DoC"..lme:J.t No. 418077, lvIinidoka County
rec:o rCS
i\..pril , 1995
Ronald S. Jones and Tammy Jones husband and wife, Niagic
Valley Foods, Inc., an Idaho Corporation, Rolland Jones
Potatoes , Inc.a...TJ. Idaho corpor3.tion~ R.J.T. Farming) Inc., an
Idaho corporation, 2-RJ Corporation, an Idaho corporation,
Roge: L. Jones and Nancy Jones, husband and wife
Mo~g3.g~~: JohD. Hancock 1tIutual Life Insur3.Ilce Company, a corporation
(..
~ffec:s ea.se~e:lt par(:els only.
Rec:) rdec.~
Dated:
J\lIo rcgago r:
(CO 11.L~ lT1="D )
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Policy No.: C 385519
Orde: No.lC650
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SCHED OLE B
EXCEPTIONS FRO1tl COVERA.
SPECL\L EXCEPTIONS (CONTINUED):
The fol1o'W.ing matters shown on AL TAl ACS1'1 survey dated December 1, 1995, and
AJ. AJ ACS1vl survey dated 1'larch 10, 1995 prepared by Moon & Associates
Engine~ring & Land Surveying, Jobs No. 95147 and,940S5.
Lease Parcel (parcel 2 on survey)a. Overhead electric lineb. Two lights and power polesc. Gas main
A.ccess Easement
3.. T we overhead eleCtric linesb. Light and powe!' polec. Gas lvlain
Utility Easement a. Gas m~i1"1 and manifoldb. Wate: meter boxc. 10 foot easement for city water and sewe:d. Gas valve
Conc:e!e O3.ve:nent
...
Utility Easement 2a. Conc:-e!e pavementb. Overhead pipes
U tilitv Easement 3a. Conc:e!e pavementb. Overhead pipes
Utility Easement 4a. Sar.ita.r-v se"wer lines and sewer manholeb. Overhead eleCtric line
Utili!'"T Easement 5
Sanitary sewe: line
Overhead elec:ric line
Railroad SDur t:ack
...
3..
UtilitY Easement 63.. Overhead dec::ic line
E;(~l.JED
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Polic-I' No.: C 385519
Order No.10650
SCHED u"LE B
EXCEPTIONS FROtvl CO\lE~A.GE
SPECL~ EXCEPTIONS (CO~lJED):
Pending disbursement of the full proceeds of the loan secured by the insured mortgage
and norn9ithstanding the .Amount of Insurance sho1N9n in Schedule A and any terms and
provisions of the Policy to the contrar/, the A.mount' of Insuran~ given by this Policyis limited to an amount equal to the amount aC7"...lally disbursed under the insured
mortgage at Date of Policy. No disbursements made subsequent to Date of Policy shall
be insured by this Policy unless made with the written approval of the Company. The
Company s approval of each disbursement shall bem the form of CLT.A. Form 122
Endorsement ~9hich when issued, shall insure the disbursement as a valid and
enforceable lien prior to any liens , encumbrances or other maners, except those listec
in Endorsement, if any, and those sho1N9n as exceptions in Schedule B of the Policy.
ENTI OF SCr:ED uTI B
10/16/96 hm
Schedule B (..A.L T.A. Extended Loan Coverage)
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:nstruct:ons:STATE OF IDAHO FINANCING STATEMENT - FORM UCC-Customer Account Number
1, PLEASE TYPE THIS FORM IN BLACK2, Filing Fees: a, With Secretary of State, Except for pre-paid account users, enclose filing fee of $6,00 if form is typed, or $10,00 if
not typed, For attachments, add $1,00 per printed page, Pre-paid account users must enter Customer Number in
Customer account number" block to right
b, Fixture filing with County Recorder, Enclosed recording fee of $3,00 per page,3, File on the original. Make copies for your file, The original will be returned as your acknowledgment.4, Enter only on debtor s name or assumed name per debtor block exactly as it is to be indexed, If more than four names, use an attached
sheet. Enter individual debtor names: Last, First Middle, Title; e,g, Smith, John Alan Jr,
5, When the obligation has been satisfied, complete the Termination Statement and return the original to the filing officer,
Mail to: Secretary of State, UCC Division, 700 W, Jefferson, p,O, Box 83720, Boise, ID 83720-0080, Ph,208-344-3191,
Debtor #1 (Last name, first, middle, title & mailing address)Debtor #3
SNAKE RIVER POTTERY POWER CO., INC.
HC 60 , BOX 1110
555 EAST RIVER ROAD
BLISS , ID 83314
A TRANSMITTING UTILITY
Debtor #2 Debtor #4
Secured Party and Address Assignee and Address
:':':':':':':':':':':',',,',
IDAHO POWER COMPANY
O. BOX 70
BOISE , ID 83707 Check if Covered 0 Product of collateral are also cover
,',,',,',',,',',,',,',,',':':':':':':':':':':':':':':':':':':':':':'::':':':':':':':':':':',',',,',',,',,',:':':':':':':':':':':',',
Mailing Address for Acknowledgment, if not Secured Party If one of the following boxes is checked, the secured part may sign the
financing statement, The collateral described herein is:
Brought into this State already subject to a security interest in
another jurisdiction
Subject to a security interest in another jurisdiction, and the
debtor s location has changed to this state
Proceeds of the original collateral described below in which a
security interest was perfected,
EV ANS , KEANE LLP
O. BOX 959
BOISE, ID 83701 -095(1
0 The subject of a financing statement which has lapsed,
Subject to a security interest perfected under a prior name or
identity or the debtor,
This financing statement covers the following types or items of property:
(If this is a fixture, timber or mineral filing to be recorded with the County Recorder, include legal description and name of record owner, if required),
All of the real property described on Exhibits A and A-
of record in the real estate records.
This financing statement is to be filed
Signature(s) of Debtor(s) SN AKE RIVER POTTERY
By at~h~VZ Cjg;Z'~:u
Filing Office Use Only
SJ t
Secured Party Signature IDAHO POWER CaMP ANY
By:
Secured Party or Assignee of Record Date
IDAHO SECRETARY OF STATE
DATE 05/12/19970324 91874
CK i: 31453 CUST~ 21288
UCCI FILE 1~ 6. 00=
ATTACH 7~ 1. 00= 7. O()
TERMINATION STATEMENT-The Secured Party no longer claims a
security interest under the financing statement.
751 555
Sf: tIT
1. Definitions Unless otherwise defined herein, all capitalized terms used iri this
Exhibit A that are defined in the Combination Deed of Trust, Security Agreement and Fixture
Financing Statement. shall have the respective meanings set forth in the Combination Deed of
Trust , Security Agreement and Fixture Financing Statement.
EXHIBIT A TO UCC-FINANCING STATEMENT
2. Description of Collateral.As security, the Company pledges , assigns , transfers
delivers to and grants Idaho Power Company a continuing second priority security interest (the
Security Interest") in the following personal property (the "Collateral") now owned or in the
future acquired by the Company or in which the Company now has or may in the future acquire
any right, title or interest, subject only to the rights of Zion Credit Corporation.
The following documents:
(i)The Firm Energy Sales Agreement;
(ii) Water Right Nos. 37-04007 and 37-04147 issued by
Department of Water Resources, State of Idaho;
(iii) FERC Order Granting Exemption From Licensing of a Small
Hydroelectric Project of 5 MW or Less, Project No. 5651-002 issued September
, 198;
(iv)FERC Order Amending Exemption issued October 2 , 1990;
(v)
of the Project;
Plans and specifications for the construction or modification
(vi) All zoning, conditional use and subdivision development
specifications , filings and approvals, and all other permits licenses , approvals
consents and certificates obtained or held in connection with the Property; and
also including without limitation all documents, agreements , correspondence,
surveys , studies, architectural renderings , maps , diagrams, water rights , water
stock, licenses , permits , approvals, orders, contract rights , rights , interests,
property, service contracts for the equipment in the Project, and benefits arising
out of or which exist in connection with any of the foregoing; and also including
without limitation all water rights, water contracts, and other rights , benefits and
privileges pertaining to said hydropower project.
(vii) All zoning, conditional use and subdivision development
specifications , filings and approvals , and all other permits licenses, approvals,
consents , and certificates obtained or held in connection with the Property or
Original Borrower s ownership thereof.
LJ............
EXHIBIT A TO UCC-FINANCING STATEMENT - 1
fj':"'G'I
,....~.,..
(viii) All documents , agreements , correspondence. surveys, studies
architectural renderings , maps , diagrams , water rights , water stock, licenses
permits , approvals , orders , contract rights , rights , interests, property, service
contracts for the equipment in the Project, and benefits arising out of or which
exist in connection with any of the foregoing.
b. All improvements , appurtenances and additions of any kind whatsoever to the
hydroelectric generating structures including, but not limited to , the powerhouse, the substations
all water conduits, dams, ditches, diversions and appurtenant works and structures, all storage
diverting and forebay reservoirs connected therewith, the inter-connection facility, all equipment
and all other supporting improvements and facilities.
c. All existing and future goods and tangible personal property of any kind or
description, located or to be located on or in the Property or wherever located, now or in the
future used in connection with, or related or to be related to, the construction, occupancy, use
operation or maintenance of the Property or the Project including all hydroelectric power
generating, distributing or transmitting machinery and equipment, all machinery, equipment
appliances , work in progress, furniture , furnishings, inventory, fixtures, materials, supplies and
vehicles of any kind or description, and all repairs , attachments, renewals or replacements of
all or any part of the foregoing.
d. To the extent assignable, all accounts , contract rights , documents, securities
chattel paper, instruments , notes , drafts, letters or advises of credit , receivables and other
amounts and obligations owing to the Company, in each case in respect to the Project and all
ledger sheets files and records , architectural drawings , plans, specifications, soil tests
feasibility studies, appraisals, engineering reports and similar materials relating to all or any part
of the Collateral or the Project.
e. To the extent assignable, all general intangibles , chooses in action and claims
and rights to recover and proceed against any person, in each case relating to the design
development, construction, ownership, acquisition, occupancy, use, operation, maintenance and
disposition of all or any part of the Collateral and the Project , including all goodwill, all
Government Approvals, all authorizations, approvals , consents , waivers, exceptions , licenses
filings , registrations , permits , notarizations , special leases and other requirements of any
governmental, quasi-governmental, judicial or public or statutory authority, body or entity
Governmental Actions ) and all materials prepared for filing or filed with any governmental
agency in any way relating to the Project.
f. All of the Company s right title and interest under all of the Project
Documents to which the Company is a party and, to the extent assignable , all other contracts
(including those with any general contractors and subcontractors), leases , licenses and pennits
concerning the design, development, construction, ownership, acquisition, occupancy, use
operation, maintenance or disposition of all or any part of the Collateral or the Project, as the
same may be modified, amended or supplemented from time to time.
EXHIBIT A TO UCC-FINANCING STATEMENT - 2
s::z~ iJr
~~~g.
All payment and performance bonds or guaranties relating to all or any part
of the Collateral or the Project and any and all modifications and extensions of the same.
h. All warranties or similar product performance, suitability and merchantability
representations , indemnities and guaranties given by the vendors and suppliers of any Collateral
(including without limitation those given by the Equipment Supplier) and the right to recover
against and proceed with respect to the same to the extent assignable.
All Taking Proceeds.
j.
All proceeds from, and all rights to recover against and proceed with respect
to, policies of insurance insofar as they relate to all or any part of the Collateral or the design
development, construction, ownership, acquisition, occupancy, operation, maintenance or
disposition of all or any part of the Collateral or the Project maintained in respect to all or any
part of the Collateral or the Project, and any and all riders, amendments, extensions, renewals
supplements or extensions of such policies.
k. All names under or by which all or any part of the Collateral or the Project
may at any time be operated or known.
1. All other proceeds (including proceeds from the sale of power) in whatever
form of all or any part of the Collateral.
Without limitation of the generality of the foregoing description of the Collateral and without
duplicating the effect of any other provision herein, the Collateral shall include all monies due
and to become due under any of the Project Documents to which the Company is a party
under any other contract, lease, license , permit, bond, guaranty, warranty, indemnity, policy
of insurance , Governmental Action, in each case which is part of the Collateral, or any other
part of the Collateral , any damages arising out of or for breach or default in respect of any of
the foregoing, all other amounts , if any, from time to time paid or payable under or
connection therewith, the right of the Company to terminate any of the foregoing or to perform
or to exercise remedies thereunder whether conferred by agreement, statute, law or otherwise
or to exercise any election or option to make any decision or determination whatsoever or to
give any notice , consent, waiver or approval or to take any other action under or in respect
thereof. The term "proceeds " shall include whatever is received or receivable when the
Collateral referred to above or proceeds therefrom are sold, collected, exchanged or otherwise
disposed of, whether such disposition is voluntary or involuntary.
EXHIBIT A TO UCC-FINANCING STATEMENT - 3
8.CU",ITY TIT!.. CO-. aOOrl1/40. ID 0(,1001140 AND LINCOLN COUIITIIt". --'-----
84' tJ1WARRANTYDEED
for Vc'llue I1c((,i....,..J Stella Eli zabeth FanlS\yurth , a widow continuously
~d n c e p r i 1 B , 197 U
Heroin!)flor (/liln.) tiM' Grllnl"r . hercb'f 'J'JIlt!, b,"(pim. ~ell~ "IIU c.onvey\ unto
Aldrich Uowlet- aud Lilian D. Bowler , husband and wife
Sun' Huutc , Bli~;s'l Idaho 83314
Horeinofler collod the G,onlee, the following described premi~es ~ilu"ted in Gooding Ccunty. Idaho, lo,....,it:
Tuwl1ship () South , Range 13 East of the Boise MeridianSection 21: Part of Lot 3 described as follows:
Beginning at the Northwest corner or
fi aid Lu t 3;
thence N UgD 25' E along the North line
of Lot 3 UJ.feet to the true point of beginning:
thence continuing N 890 25' E along said
North line of Lot 3 , 212.3 feet , corner No. I
thence S 160 36' W , 373.7 feet , corner No.thence S 300 00' W , 234.0 feet more or less
to the North bank 0 Snake River , to corner No.3 j
Lhence North\vesterly along the North bank
of Snake River to the East bank of an unnamed creek
Lo corner No. l.;
thence Northeas ter ly along said Eas t ballk
of said creek to point which is S 790 U3' W , 241.feet or COL"l1Cr No., which is corner No.
thence N 130 44', 168.77 feet more or
less Lo CJ point '23/.8 feet South of the North line ofstlill Lol., corner No.
thence N thence N
poiul of beginning.
07' W , 17.9 feet , cornet-
3U' E , 237.8 feet to the
No.7; true
10 I lAVE AND 10 IIOLD, t!1O ..oiJ prer"i!.OS, with Iheir oppurtc""nces unto the ~oid Grol'ltee ond 1':1 thu ('~,.In', I
\ hci,~ .",d OHICJns forever. And 111'0 Gr.snlor docs hereby coveflo1nt to and with tho -said Grantoe fl,." ,he Gronlor is lI.e owner in fce simple of said prcrniros; thai they .sra free f~om oil incumbr"nc~~ elcept o1S db.,...., d".
sl.riboJ lInu ,1.'11 Grouler will wo1rrdnl dnJ defend the ~"me from 0/1 100Wful claims who1ts08v8f. .;J
001101.1: January IS 11.)77.
I ~.
I 2
::I
....
Tugether wi th a 11 wa ler rights appurtenant theretodomestic wuler lil1e and easements for it , and all
other easement rights "ppurtenallt thereto.
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f :-.1 t,
--.----_.. -.--.
STAT!: OF IDAHO'COUNTY OF
I horcby ClJrtify thot 'his instrument wa~ fil~d for ru,::"",l
at the request of /?1-..-
~ .
ot /1 rninul8$ post o c.lod ~ m ,is /9 day of
I Ii 77. in my oHice, and duly record"
f 06od~ 01 poge
~rg~r~~~. C
~~.~...~!'
~.!C:i)E..Qfhio RticlJrder
.. .&-'~,~
f""~"",,,,~U~~~
. O\fC~c\ D
j:.
.~r.'
~ ..-----,
Sf'-.T( or- IOAIIO, COUNTY Of Gouding
0" lItis lUth doyof Jflnuary 19 77
bebre me, (I nolo')' public ;n end for ~lIi" SI.:Ite , per-
, :il.K1ollyoppeoreJ Stella J::11zab(:'thFarllswurth" a widu\v
: ,... ,. "
~1\o'W" to IIWI fu bb tl.., persol' whu:.u Mind
. ".
bscrit.~11 to )tf~ '~ilhin instrument, Gild ""::~I,,",:.IOO(JeJ
to me ,~t
" ':-;
hc e'U4"-utoJ the ~"'e
;, t " t
. .
I ~;;
~;,,~ '~;'. (;
",,' ~ illl"
Foes $Noto')' Publ,f".
Idoho. Moil to:
.._.. ._-,. .-------,
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---.-,-..------,
. n..,-
'., -. -'.,... .." .
EXHIBIT A-l
::-
.:C
ii6
': ', ,
E SEast 12th AvenueJerome, Idaho
83338
324-3479
A C C U
609
,. "..'-"-
733-8002
. '
E Y S
fir""ft tJr
536-6285
PROPERTY DESCRIPTION
fiL D n I:i: IT :e .:AiriER P,IE. T E- /3 0 \AI' c... G. (Parcel "I::;' IfL (J /~/c f-f- 8 (j YVL..Erc
A parcel of land in Lot 3, Section 21, T.6S., R.13E., B.M.,
Gooding County, Idaho and being more specifically described asfollows:
Commencing a t the southeast corner of Section 21, T. 6S., R .13E. ,M., N. Q021'39"W., 1315.92 feet along the east boundary ofSection 21 to the northeaat corner of Lot 3, Section 21; thence along
the north boundary of Lot 3, Section 21, S.89O471 54"W., 2302.43 feetto the REAL POINT OF BEGINNING;
thence from this REAL POINT OF BEGINNING S .15043 35"~.
355.79 feet;
thenc e 89O 471 46"W.,8 9. 20 feet;
thence 16O 0Q'03"W.,75.feet;
thence 29O411 47"W.,4 2. feet;
thence 551 33'88.feet;
thence 86O 291 39"W.,28. 43 feet;
thence N.1 0 34 ' 57" E., 142.85 feet to the north boundary of Lot Section 21;
thence along the north boundary of Lot 3, Section 21, N.89O47'54"E.,
69.60 feet to the REAL POINT OF BEGINNING.
The above described parcel of land contains an area of72 acre.
April 7, 1980
, '
on- ". -- ' .
, .. , " .. .. ""-..'., "........,..' ", , . "
A C C U
609
E S
East , 12th Avel1ueJerome, Idaho
83338
324-3479
~...~".",~..'
733-8002 536-6285
PROPERTY DESCRIPTION
ALDRICH BOWLER(Parcel "
A parcel of land in Lot 3, Section 21, T. 6S., R.13E., B. M. ,
Gooding County, Idaho and being more specifically described as
follows:
Commencing at the southeast corner of Section 21, T.GS., R..13E~,
M., N.o02l'39"W., 1315.92 feet along the east boundary of
Section 21 to the northeast corner of Lot 3, Section 21; thence
along the north boundary of Lot 3, 8ection 21, 8.89~47'54"W.,
2389.03 feet; thence 8.0048' 57"W., 162.48 feet to the REAL POINT
OF BEGINNING;
thence from this REAL POINT OF BEGINNING' 8 . 8 5 0 23 ' 09 II E. ,
24 .32 feet;
thence S.16'27" E., 75.25 feet;
thence 29O 4l'47"E.,43.feet;
thence 16O 00'O3"E.,67.feet;
thence 89O 47 '46"W.,139.feet;
thence 15O 00'lO"E.,8 2.feet;
thence N. 290 32' 09"E.,~5.feet;
thence N.o048'57"E., 24.40 feet to the REAL POINT OF BEGINNING.
The above described parcel of land contains an area of
32 acre.
April 7, 1980
.; ,, ", "
0 '
" .' '
A C C U
609
F~"'-
~~~"'
E S
East 12th AvenueJerome, Idaho
83338
324-3479 536-6285
E Y S
733-8002
PROPERTY DESCRIPTION
ALDRICH BOWLE~(Parcel "
A parcel of land in Lot 3, Section 21, T.6S., R.13E., B.M.,Gooding County, Idaho and being more specifically described asfollows:
Commencing at the southeast corner of Section 21, T.6S., R.13E.,M., N.oo21'39"W., 1315.92 feet along tq.e east boundary ofSection 21 to the northeast corner of Lot 3, Section 21; thencealong the north boundary qf Lot 3, Section 21, S.8~0 471 54"2372.03 feet to the REAL POINT OF BEGINNING;
thence from this REAL POINT OF BEGINNING S.341 57"W.,142.85 feet;
th e nc e S. 8 6 0 29 I 3 9 II E ., 28. 4 3 fee t ;
thence 55'3311 E.,88. 64 feet;
thenc e 29O 41'47"E.,42.feet;
thence 16O 00'O3"E.,75.feet;
thenc N. 890 47 46"W.,20. 83 Feet;
thenc e N. 16 0 0 0 I 0 3 If \'1.,67. 61 feet;
thenc e 29O 411 47If W.,43.feet;
thence 161 27"W.,75. 25 feet;
thence N. 85023 ' 09"W .,24. 32 feet;
thence N.48'57"E.,162.feet to the north boundary of Lot Sec tion 21;
thence along the north boundary of Lot 3, Section 21, N. 89047 1 54 Ii E., 17 .00 feet to the REAL POINT OF BEGINNING.
The above described p~rcel of land contains an area of
16 acre.
April 7, 1980
. . '"
!ristructions:STATE OF IDAHO FINANCING STATEMENT - FORM UCC-Customer Account Number
, -"""'~'"
PLEASE TYPE THIS FORM IN BLACK2, Filing Fees: a, With Secretary of State, Except for pre-paid account users, enclose filing fee of $6,00 if form is typed, or $10,00 if
lot typed, For attachments, add $1,00 per printed page, Pre-paid account users must enter Customer Number in
Customer account number" block to right
b, t'ixture filing with County Recorder, Enclosed recording fee of $ 3,00 per page,3, File on the original. Make copies for your file, The original will be returned as your acknowledgment,4, Enter only on debtor s name or assumed name per debtor block exactly as it is to be indexed, If more than four names, use an attached
sheet. Enter individucll debtor names: Last, First Middle, Title; e,g, Smith, John Alan Jr,5, When the obligation has been satisfied, complete the Termination Statement and return the original to the filing officer,
Mail to: Secretary of State, UCC Division, 700 W, Jefferson, P,O, Box B3720. Boise, ID 83720-0080, Ph,208-344-3191,
Debtor #1 (Last name, first, middle, title & mailing address)Debtor #3
SNAKE RIVER POTTERY POWER CO., INC.
HC 60 , BOX 1110
555 EAST RIVER ROAD
BLISS , ID 83314
A TRANSMITTING UTILITY
Debtor #2 Debtor #4
0',0'0'0'0',0',0'0',
:::::::::::::::::'::::
0',0'0'0',
:':':':':':':':':':':'
0',0',
:':':':':':':':':':':':::;:::;:;:::::::;::::
0',
:':':':':':':':':':':'
0',0',0',
:':':':':':':':':':':'
0'0',
Secured Party and Address
_._~_.-
Assignee and Address
IDAHO POWER COMPANY
O. BOX 70
BOISE, ID 83707
'---
Check if Covered 0 Product of collateral are also cover
Mailing Address for Acknowledgment, if not Secured Party
'.__'
0',0',0',0',0'0'0',
0'0'"""0'0'0',0'0',0',
':':':':':':':':':':':
0',0',0',0',0',
:':':':':':':':':':':'
0',0'0'0',0',
"'0',0',
:':':':':':':':':':':'
0'0',0',0'0',
0'0',0'0',
EV AN S , KEANE LLP
O. BOX 959
BOISE, ID 83701 -0959
If one of the following boxes is checked, the secured part may sign th~'
financing statement. The collateral described herein is:
Brought into this State already subject to a security interest in
another jurisdiction
Subject to a security interest in another jurisdiction, and the
debtor s location has changed to this state
Proceeds of the original collateral described below in which a
security interest was perfected,
0 The subject of a financing statement which has lapsed,
Subject to a security interest perfected under a prior name or
identity or the debtor,
This financing statement covers the following types or items of property:
(If this is a fixture, timber or mineral filing to be recorded with the County Recorder, include legal description and name of record owner, if required),
All of the real property described on Exhibits A and A-
of record in the real estate records.
This financing statement is to be filed
Signature(s) of Debtor(s) SNAKE RIVER POTTERY
~' POWER CO.I~. /LeCLW~ 1:1c,.-t,~iZ_6A-
Filing Office Use Only
By:1. 7()843
0 ,
, ~
By:MAY I 4 199-
Secured Party Signature IDAHO POWER COMPANY
/ Secured Party or Assignee of Record Date
A.M.
GOODING COUNTY RECORDER
6M- a. 1(. dO
TERMINATION STATEMENT-The Secured Party no longer claims a
security interest under the financing statement.
'ccc,.."EXHIBIT A TO UCC-FINANCING STATEMENT
1. Definitions Unless otherwise defined herein, all capitalized tenns used in this
Exhibit A that are defined in the Combination Deed of Trust, Security Agreement and Fixture
Financing Statement. shall have the respective meanings set forth in the Combination Deed
Trust, Security Agreement and Fixture Financing Statement.
2. Description of Collateral.As security, the Company pledges , assigns, transfers
delivers to and grants Idaho Power Company a continuing second priority security interest (the
Security Interest") in the following personal property (the "Collateral ") now owned or in the
future acquired by the Company or in which the Company now has or may in the future acquire
any right, title or interest, subject only to the rights of Zion Credit Corporation.
The following documents:
(i)The Finn Energy Sales Agreement;
(ii) Water Right Nos. 37-04007 and 37-04147 issued by
Department of Water Resources , State of Idaho;
(iii) FERC Order Granting Exemption From Licensing of a Small
Hydroelectric Project of 5 MW or Less, Project No. 5651-002 issued September
, 198;
(iv)FERC Order Amending Exemption issued October 2, 1990;
(v)
of the Project;
Plans and specifications for the construction or modification
(vi) All zoning, conditional use and subdivision development
specifications, filings and approvals , and all other pennits licenses, approvals
consents and certificates obtained or held in connection with the Property; and
also including without limitation all documents, agreements , correspondence,
surveys, studies , architectural renderings, maps, diagrams, water rights, water
stock , licenses , pennits , approvals , orders, contract rights, rights , interests
property, service contracts for the equipment in the Project, and benefits arising
out of or which exist in connection with any of the foregoing; and also including
without limitation all water rights, water contracts , and other rights , benefits and
privileges pertaining to said hydropower project.
(vii) All zoning, conditional use and subdivision development
specifications , filings and approvals , and all other pennits licenses, approvals
consents, and certificates obtained or held in connection with the Property or
Original Borrower s ownership thereof.
1---
EXHIBIT A TO UCC-FINANCING STATEMENT
c~"~~~~.
(viii) All documents , agreements , correspondence. surveys , studies
architectural renderings , maps, diagrams , water rights , water stock, licenses
permits, approvals , orders , contract rights , rights , interests , property, service
contracts for the equipment in the Project, and benefits arising out of or which
exist in connection with any of the foregoing.
b. All improvements , appurtenances and additions of any kind whatsoever to the
hydroelectric generating structures including, but not limited to, the powerhouse, the substations
all water conduits , dams, ditches, diversions and appurtenant works and structures, all storage
diverting and forebay reservoirs connected therewith, the inter-connection facility, all equipment
and all other supporting improvements and facilities.
c. All existing and future goods and tangible personal property of any kind or
description, located or to be located on or in the Property or wherever located, now or in the
future used in connection with, or related or to be related to , the construction, occupancy, use
operation or maintenance of the Property or the Project including all hydroelectric power
generating, distributing or transmitting machinery and equipment, all machinery, equipment
appliances, work in progress , furniture , furnishings , inventory, fixtures , materials , supplies and
vehicles of any kind or description, and all repairs , attachments , renewals or replacements of
all or any part of the foregoing.
d. To the extent assignable, all accounts, contract rights, documents , securities
chattel paper, instruments , notes , drafts, letters or advises of credit, receivables and other
amounts and obligations owing to the Company, in each case in respect to the Project and all
ledger sheets files and records, architectural drawings, plans, specifications , soil tests
feasibility studies , appraisals , engineering reports and similar materials relating to all or any part
of the Collateral or the Project.
e. To the extent assignable , all general intangibles, chooses in action and claims
and rights to recover and proceed against any person, in each case relating to the design
development , construction, ownership, acquisition, occupancy, use , operation, maintenance and
disposition of all or any part of the Collateral and the Project , including all goodwill, all
Government Approvals, all authorizations, approvals, consents , waivers, exceptions, licenses
filings , registrations , permits, notarizations, special leases and other requirements of any
governmental , quasi-governmental , judicial or public or statutory authority, body or entity
Governmental Actions ) and all materials prepared for filing or filed with any governmental
agency in any way relating to the Project.
f. All of the Company s right title and interest under all of the Project
Documents to which the Company is a party and, to the extent assignable, all other contracts
(including those with any general contractors and subcontractors), leases, licenses and permits
concerning the design, development, construction, ownership, acquisition, occupancy, use
operation, maintenance or disposition of all or any part of the Collateral or the Project, as the
same may be modified, amended or supplemented from time to time.
EXHIBIT A TO UCC-FINANCING STATEMENT - 2
g.
All payment and perfonnance bonds or guaranties relating to all or any part
of the Collateral or the Project and any and all modifications and extensions of the same.
. h. All warranties or similar product performance , suitability and merchantability
representations , indemnities and guaranties given by the vendors and suppliers of any Collateral
(including without limitation those given by the Equipment Supplier) and the right to recover
against and proceed with respect to the same to the extent assignable.
All Taking Proceeds.
j.
All proceeds from , and all rights to recover against and proceed with respect
, policies of insurance insofar as they relate to all or any part of the Collateral or the design
development, construction, ownership, acquisition, occupancy, operation, maintenance or
disposition of all or any part of the Collateral or the Project maintained in respect to all or any
part of the Collateral or the Project, and any and all riders, amendments, extensions , renewals
supplements or extensions of such policies.
k. All names under or by which all or any part of the Collateral or the Project
may at any time be operated or known.
1. All other proceeds (including proceeds from the sale of power) in whatever
form of all or any part of the Collateral.
Without limitation of the generality of the foregoing description of the Collateral and without
duplicating the effect of any other provision herein, the Collateral shall include all monies due
and to become due under any of the Project Documents to which the Company is a party or
under any other contract, lease , license , permit , bond, guaranty, warranty, indemnity, policy
of insurance , Governmental Action, in each case which is part of the Collateral, or any other
part of the Collateral, any damages arising out of or for breach or default in respect of any of
the foregoing, all other amounts, if any, from time to time paid or payable under or
connection therewith, the right of the Company to terminate any of the foregoing or to perform
or to exercise remedies thereunder whether conferred by agreement , statute, law or otherwise
or to exercise any election or option to make any decision or determination whatsoever or to
give any notice, consent waiver or approval or to take any other action under or in respect
thereof. The term "proceeds " shall include whatever is received or receivable when the
Collateral referred to above or proceeds therefrom are sold , collected, exchanged or otherwise
disposed of, whether such disposition is voluntary or involuntary.
I......:.....-
EXHIBIT A TO UCC-FINANCING STATEMENT - 3
QOODlt4Q ""0 L.IHCOL.H COUIITII.-. --.----
WARRANTY DEED
ror VIIIUtl Pcq,i"c."lJ StelLI Eli 7.abeth Fanlswurth widow continuously~duce Apri 1 U , 1976
Herointl/lor c/llinoJ li"l Gr/lnl0l. hp.rcb'f 'JrJllh, b"'q"in\, \611\ dlld (,onvey\ unlo
AldtOich Bowler unJ Lilian D. Bowler , husband and wifeSUIL- Ruute Bl.i~js" Idahu 83314
Heroine/ter celled the Gr"nlee. the following do\cribed premi\oes siluoled in Gooding County, Idaho, 10' ....it:
TuWllship 6 South , Range 13 East of the Boise MeridianSection 21: Part of Lot 3 described as follows:
Beginning at the Northwes t corner orsn it! Lot
tllence N U9O 25' E along the North line
of Lot 3 , 83.7 feet to the true point of beginning:
thence continuing N 890 25' E along saidNorth linc or Lot 3 , 212.3 feet , corner No.
thence S 160 36' W , 373.7 feet , corner No.
Lhence S 300 00' W , 234.0 feet more or lessto the No lo th bi! nk of Snake River , to corner No.Lhel1ce NorthweHterly along the North baukof Snake River to the East bank of an unnamed creek
Lo corner No. L.;
thence Northeasterly along said East ballk
of said creek to point which is S 790 aJ' W , 241.feet of con1er No., which is corner No.
thence N 130 44' W , 168.77 feet more orless Lo .J point '2.3/.8 feet South of the North line of
S;1 it! Lot., con 1 e r No. thence N 89 07' , 17.9 feet , cornerthence N Otl 38' E , 237.8 feet to thePOilll of bc~inning.
No.7; true
Togethcl- wi tit all welLer rights appurtenant theretodoniestic water lille and easements for it , and allother eascmcnt: rights appurtenallt thereto.
10 I I/\VE AND TO IIOLD, ~\O ..aid premi:.os, with their appurlen"nces unto the s/lid Grentee and t~1 Iho (-~r'I""s heirs ,JI,d oss'qns forever. And 1"'0 Grdnlor doos hereby coven"nt to "nd with the 'Seid Granlee, ,1.",1 ,heGr anlor is lite owner in fee \implo of said prt:rniros; thot they "re freo from /III incumbr(lnce\ elcept dS db"."., dO!.s(.ri~ /IntI I"o,t Gralltor will W""dnt dnJ de/end the somo from al/ I(lwfu( cldims whcl\06v6l', ' .
0,,11)(/:January 10 , IlJ77.
'" ... , ....
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--.----_.. ---.
STAT!: OF IDAHO'COUNTY OF
I ht,rcby corti/y th"t this instrument wa~ fil-xJ for rc,;:c...i
"t the request of )h......
at II rninulas pdSt o c.lod 4' m lii /9 d/lY of
19 77, in my office. /lod duly recordl.
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SI'.T( Of IDAltO. COUNlY OF Good ing
011 IIlis lUth doy 0/ Jnl1uary 19 77
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,- I ~b,o ~no,a"ollu)' public .in "o..J for slli.l SI"te. per.s.,nallyappeared Stella ElizabeLh
FanlS\-lol"th , a widll\" ,
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. \l'bscril.Jcji to Itf~ '-:-ilhin instrurneol, Cllld odr"~'\"~(Jodto me .~t
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EXHIBIT A-l
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East 12th Avenue
Jerome, Idaho
83338
324-3479
A C C U
609
~~-'
733-8002
E Y S
536- 628 5
PROPERTY DESCRIPTION
llLDRI:CTT 5':)~i:DER P.s. T 1\ 13 CJ \.A/ "- E.
(Parcel li IJ' ;f-L P /~JC ff- 8 (j YV!-Erc
A parcel of land in Lot 3, Section 21, T. 6S., R.13E., B.M.,
Gooding County, Idaho and being more specifically described asfollows:
Commencing at the southeast corner of Section 21, T.6S., R.13Eow
M., N.o021'39"W., 131S.92 feet along the east boundary Section 21 to the northeast corner of Lot 3, Section 21; thence along
the north boundary of Lot 3, Section 21, S.89O47'S4"W., 2302.43 feet
to the REAL POINT OF BEGINNING;
thence from this REAL POINT OF BEGINNING S .150 43 I 3S"E. 35S.79 feet;
thence N. 890 47 '46 "W.,8 9.feet;
thence 16O 00'O3"W.,75.feet;
thence N. 29O4l'47"W.,4 2.feet;
thence SSI 33'W.,88.feet;
thence 86O 29'39"W.,28.feet;
thence N.34'57", 142.85 feet to the north boundary of Lot Section 21;
thence along the north boundary of Lot 3, Section 21, N. 890 47 '54 li E. ,
69 . 60 feet to the REAL POINT OF BEGINNING.
The above described parcel of land contains an area 72 acre.
April 7, 1980
, ., '-" .. ". ,' ,. ." "" ., , ,, '.,,
e U
609
E S
East 12th Avenue
Jerome, Idaho
83338
324-3479 536-6285
,...~..-
733-8002
PROPERTY DESCRIPTION
ALDRICH BOWLER(Parcel "
A parcel of land in Lot 3, Section 21, T.6S., R.13E., B.
Gooding County, Idaho and being more specifically described as
follows:
Conunencing at the southeast corner of Section 21, T.6S., R.13E.,
M., N.o021' 39"W., 1315.92 feet along th~ east boundary of
Section 21 to the northeast corner of Lot
3, Section 21; thence
along the north boundary of Lot
3, Section 21, S. 8 9~ 47' 54 n w.
2389.03 feet; thence S.0048'57"W., 162.48 feet to the REAL POINT
OF BEGINNING;
thence from this REAL POINT OF BEGINN:J:NG' S. 850231 09"E.
24 32 feet;
thence S.16127" E., 75.25 feet;
thence S.29O4l'47"E., 43.64 feet;
thence 160 001 03"E.,67.feet;
thence 89O47146"W.,139.feet;
thence N .150 00 'lon E.,82.feet;
thence N. 290 32' a9"E.,~5.feet;
thence N. 0048' 57n E., 24.40 feet to the REAL POINT OF BEGINNING.
The above described parce~ of land contains an area of
0 . 32 acre.
April 7, 1980
, . ..". ',.. .......' ,, :"
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A C C U
609
E SEast 12th AvenueJerome, Idaho
83338
324-3479733-8002 536-6285
PROPERTY DESCRIPTION
ALDRICH BOWLER(Parcel "
A parcel of land in Lot 3, Section 21, T.6S., R.13E., B.M.,
Gooding County, Idaho and being more specifically described asfollows:
Comrnenc ing a t the southeast corner of Section 21 I T. 6S., R .13E. ,
M., N.oo2l1 39"W., 1315.92 feet along t~e east boundary of
Section 21 to the northeast corner of Lot Section 21; thence
along the north boundary Qf Lot 3, Section 21, S. 8 ~ 047 1 54"
2372.03 feet to the REAL POINT OF BEGINNING;
thence from this REAL POINT OF BEGINNING S.341 57"W.,
142.85 feet;
thence 86O291 39"E.,28.feet;
thenc e 551 33"E.,8 8 . 64 feet;
thenc e 29O4l'47"E.,4 2.feet;
thence 16O 001 03"E.,75.feet;
thenc 89O471 46"W.,20.Feet;
thenc e 16O 00'03"W.,67.feet;
thenc e 29O 4l'47"W. 4 3 . 64 feet;
thence N. 8 0 161 27" W.,75.feet;
thenc e N. 850 23 I 09"W.,24.feet;
th e nc e N. 0 0 4 8 I 5 7 "E .,162.feet to the north boundary of Lot
Section 21;
thence along the north boundary of Lot 3, Section 21, N.89O47'54"E.,
17 .00 feet to the REAL POINT OF BEGINNING.
",,..._-", ,,"""... - ,.. ,, "" ..".. .._,," -" ......-." ,,--- ---.-.... --
The above described p~rce1 of land contains an area of
16 acre.
April 7, 1980
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