20071023Notice of Affiliate Transaction.pdf

PacifiCorp Notice of Affiliate Transaction Docket No. PAC-OS-Page I of2
One Utah Center, 23rd Floor
201 South Main
Salt Lake City, UT 84111
CKY MOUNTAIN
POWERA~OI~
Please Reply To:
Jordan A. White, Senior Counsel
Direct Dial (801) 220- 4640
Fax [phone]
email: jordan.white(gjpacificorp.com
October 18, 2007
Idaho Public Utilities Commission
472 West Washington
Boise, ill 83702-5983
Attention:Jean D. Jewell
Commission Secretary
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Re:PacifiCorp Notice of Affiliate Transaction
Docket No. PAC-05-
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Dear Ms. Jewell:
This letter will serve as notice pursuant to Commitment I 17(2), incorporated in the Idaho
Public Utilities Commission Order No. 29973 issued February 13 2006, as supplemented by
Order No. 29998 March 14 2006 , in the above-referenced proceeding, approving the acquisition
of PacifiCorp by MidAmerican Energy Holdings Company, that PacifiCorp will commence new
business transactions with affiliates. The transactions are supported by the agreements described
below.
Bridger Coal Company Agreements
The following agreements are hereafter collectively referred to as the "Bridger Coal
Company Agreements : Relocation Services Agreement between HomeServices Relocation
LLC ("HomeServices ) and Bridger Coal Company (attached hereto as Exhibit "); Master
Subsidy Agreement between HomeServices Lending ("HSL") and Bridger Coal Company
(attached hereto as Exhibit "); and Employee Home Equity Financing Guaranty Agreement
between Wells Fargo Home Equity and Bridger Coal Company (attached hereto as Exhibit "
Bridger Coal Company is a joint venture between Pacific Minerals , Inc., which is a subsidiary of
PacifiCorp, and Idaho Energy Resources Company. HomeServices, HSL and Pacific Minerals
Inc. are affiliates of PacifiCorp. The effective date of the Bridger Coal Company Agreements is
October 22, 2007. The agreements have been executed by Bridger Coal Company and will be
fully executed by all parties prior to their effective date.
Under the Relocation Services Agreement, HomeServices will provide housing assistance
programs to eligible Bridger Coal Company employees. Under the programs, eligible employees
choosing to purchase a home may opt for either a mortgage subsidy or a corporate purchase
second mortgage. The mortgage subsidy plan will be financed through HSL under the terms of
PacifiCorp Notice of Affiliate Transaction Docket No. PAC-OS-Page 2 of 2
the Master Subsidy Agreement. Wells Fargo Home Equity, a division of Bank, National
Association, will finance the corporate purchase second mortgage program under the terms of the
Employee Home Equity Financing Guaranty Agreement.
PacifiCorp Energy Agreements
The following agreements are hereafter collectively referred to as the PacifiCorp
Energy Agreements Relocation Services Agreement between HomeServices and PacifiCorp
Energy (attached hereto as Exhibit "); Master Subsidy Agreement between HSL and
PacifiCorp Energy (attached hereto as Exhibit "); and Employee Home Equity Financing
Guaranty Agreement between Wells Fargo Home Equity and PacifiCorp Energy (attached hereto
as Exhibit "). PacifiCorp Energy is a division of PacifiCorp. HomeServices and HSL are
affiliates of PacifiCorp. The effective date of the PacifiCorp Energy Agreements is October 22
2007. The agreements have been executed by PacifiCorp Energy and will be fully executed by
all parties prior to their effective date.
The Relocation Services Agreement between PacifiCorp Energy and HomeServices
contains the same terms and conditions as those contained in the Bridger Coal Company
Relocation Services Agreement with HomeServices. Additionally, PacifiCorp Energy s Jim
Bridger Power Plant Housing Assistance Program offers a mortgage subsidy program and
corporate purchase second mortgage program. The mortgage subsidy program will be offered
under the terms of the Master Subsidy Agreement between Jim Bridger Power Plant and HSL.
The terms and conditions of the Jim Bridger Power Plant Master Subsidy Agreement are the
same as the Bridger Coal Company Master Subsidy Agreement. The corporate purchase second
mortgage program will by financed by Wells Fargo Home Equity under the Employee Home
Equity Financing Guaranty Agreement.
Although these are affiliate transactions, the parties negotiated the agreements at arms-
length. Please call me at the above number or Brian Dickman at [phone] if you have any
questions regarding this filing.
EXHIBIT 1
Relocation Services Agreement between
HomeServices Relocation, LLC and Bridger Coal Company
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RELOCATION SERVICES AGREEMENT
This Relocation Services Agreement (this "Agreement") is entered into by and between
HOMESERVICES RELOCATION, LLC a Delaware limited liability company, with an office at
6800 France Avenue South, Suite 355 , Minneapolis, MN 55435 (herein referredt~ as "HSR") and
Bridger Coal Company, a joint venture with Pacific Minerals, Inc and Idaho Energy Resources
Company with its principal place of business at 9.5 miles NE Point of Rocks, WY 82942 (herein
referred to as the "Company ) and is effective as of October 22. 2007 Effective Date
In consideration of the covenants contained in this Agreement and for other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
aforementioned parties to this Agreement (the "Parties" or, individually, a "Party") agree as
follows:
Section 1.Term
The term of this Agreement shall begin on the Effective Date and continue for an initial
period of one year; at the conclusion of the initial one-year pel;od, this Agreement shall renew
automatical1y for successive a one-year periods. Either party may terminate this agreement at any
time upon 30 days' notice.
Section 2.Definitions
As used in this Agreement, the following words and phrases shall have the following
meanings:
(a)Authorized Representative(s): An individual or individuals the Company designates
in writing as having authority to request that HSR provide services to an Employee
pursuant to the terms of this Agreement.
(b)
(c)
Company: Bridger Coal Company.
Direct Costs: Any and all costs, fees or expenses HSR incurs or accrues as agreed to
in advance in writing by the pmiies in providing services under this Agreement, at
any time, whether during or after the term of this Agreement, including but not
limited to payments made to an Employee as reimbursement for relocation-related
expenses and payments made directly to vendors on behalf of an Employee for
relocation-related services provided by the vendor.
Cd)Employee: Any person the Company designates as being eligible to receive services
from HSR pursuant to this Agreement, including any other person residing in the
same household and any other person in title to a property involved in the
Employee s relocation, such as a spouse.
(e)Initiation: HSR's receipt of the Company s notification, pursuant to Section 4
below, that HSR is to provide services to an Employee.
-eol'llidcRtial-Page I
Relocation Master Service Agreement Bridger Coal HSR FINAL.doc
10/9/2007
(e)
Section 3.
Service Fees:The fees HSR charges the Company for the services described in
Section 3 below.
Services Provided
At the Company s request HSR shall provide services for ' Company's designated
Employees as set forth in Exhibit A, which is attached hereto and incorporated herein by reference.
Section 4.Company s Request for Services
When the Company desires HSR to make available to an Employee any of the services
described in this Agreement, an Authorized Representative shall notify HSR in writing or
electronically of the Employees eligibility to participate in the benefit program and of the services
available to such Employee.
Section 5.Service Fees and Other Charges.
The Company shall pay to HSR the following service fees and other charges in accordance
with the billing schedule set forth in Section 6 of this Agreement:
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Section 6.
Service Fees: The fee for the services described in Section 3 of this Agreement is a
one time fee of $500 for each Employee.
(b)Direct Costs: The Company shall pay to HSR Direct Costs as described in
Section 2(c)this Agreement.
Billing and Payment Procedures
All billing will be sent to the Company as set forth in Exhibit B which is attached hereto
and incorporated herein by reference.
(a)Monthly Billing HSR shall bill the Company for all Service Fees due based on
Initiations made by Company in the prior calendar month.
(b)Expense Billing.After each Initiation, HSR shall bill the Company for Direct Costs
associated with services provided to each Employee as referenced in Exhibit B.
(c)Final Bill.After services provided to an Employee are completed or otherwise
terminated, HSR may issue a final bill for any remaining costs or expenses due for
payment or to make any necessary adjustments or credits for amounts previously
billed and/or paid.
(d)Payment Due: Late Charges. All HSR bills shall be due and payable within thirty
(30) days from the invoice date. IfHSR has not received payment within forty-five
(45) days of the invoice date, it shall assess a late charge of one percent (I %) for
each thirty (30) day period thereafter, until the invoice has been paid in full. If a
' C81\H881ltilli Page 2
Relocation Master Service Agreement Bridger CoalJISR FINAL.doc
10/912007
Section 7.
dispute arises with respect to a portion of any invoice, the undisputed portion shall
be due and payable in accordance with the above stipulated billing terms.
Accounting and Audit
HSR shall keep adequate records and books of account with respect to the transactions to be
performed pursuant to this Agreement, with complete entries made in accordance with generally
accepted accounting principles. Such records and books of account shall be made available at
reasonable times and upon reasonable advance written notice for examination and auditing by the
Company or its representatives, during the term of this Agreement, and for six (6) months
subsequent to termination by either Party. Notwithstanding the foregoing, HSR shall continue to
maintain such records regarding each Employee for two (2) years after the services for such
Employee are completed.
Section 8.
Section 9.
Survival
Sections 5 , 6, 7, 9, and 10 hereof shall survive termination.
Indemnification
(a)The Company agrees to indemnify and hold HSR, its officers, directors, employees
representatives, agents and affiliates harmless from and against any and all claims
liabilities, losses, damages, expenses, costs and lawsuits (including reasonable
attorneys' fees) incurred or suffered by HSR, its officers, directors, employees,
representatives, agents and affiliates (i) arising out of or in connection with any
action or failure to act by any Employee or any other person to whom services are
provided pursuant to the terms of this Agreement, including, but not limited to fraud
deceit, misrepresentation, negligent acts or omissions by the Employee or such other
person and failure or inability of the Employee or such other person to fulfill any
contractual obligations; (ii) arising out of or in connection with any negligence or
willful misconduct of the Company, its officers, directors, employees or Authorized
Representative(s); (iii) as a result of HSR following any instruction given properly
given by the Company or Authorized Representative(s) in accordance with the terms
of this Agreement; (iv) the breach by the Company or any Authorized
Representative of any provision of this Agreement. The right to indemnification
provided for herein shall survive termination of this Agreement. Upon performance
of its aforesaid obligation to indemnify HSR, the Company shall be subrogated to
any rights of HSR against the Employee or any other person.
(b)HSR agrees to indemnify and hold the Company, its officers, directors, employees
representatives, agents and affiliates harmless from and against any and all claims
liabilities, losses, damages, expenses, costs and lawsuits (including reasonable
attorneys fees) incurred or suffered by the Company, its officers, directors,
employees, representatives, agents and affiliates (i) as a result of any breach by HSR
of any provision of this Agreement; or (ii) arising out of or in connection with the
negligence or willful misconduct of HSR, its officers, directors, employees or
agents. The right to indemnification provided for herein shall survive termination of
CQRIi~~lIliQI-Page 3
Relocation Master Service Agreement Bridger Coal HSR FfNAL.doc
10/9/2007
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Section 10.
this Agreement. Upon performance of aforesaid obligation to indemnify the
Company, HSR shall be subrogated to the Company s rights against any other
person.
Arbitration
(a)Arbitration: If disputes between the Parties arise with respect to the terms and
conditions of this Agreement, such disputes shall be resolved by and through an
arbitration proceeding to be conducted under the auspices of the American
Arbitration Association (or any like organization successor thereto) in Rock Springs
Wyoming. Such arbitration proceeding shall be conducted in as expedited a manner
as is then permitted by the American Arbitration Association s commercial
arbitration rules (formal or informal), and the arbitrator or arbitrators in any such
arbitration (an "Arbitration ) shall be persons who are knowledgeable in the subject
matter of the dispute. No demand for arbitration may be made after the date when
the institution of legal or equitable proceedings based on such claim or dispute
would be barred by the applicable statute of limitations. Both the foregoing
agreement of the Parties to arbitrate any and all such claims, and the results,
determinations, findings, judgments and/or awards rendered through such
Arbitration, shall be final and binding on the Parties and may be specifically
enforced by legal proceedings.
(b)Procedure:Any arbitration shall be conducted before a panel of arbitrators selected
in accordance with the rules of the American Arbitration Association. Each Party
shall bear separately the cost of their respective attorneys, witnesses and experts in
connection with such arbitration. Time is of the essence regarding this arbitration
procedure, and the arbitrators shall be instructed and required to render their
decision within 10 days following completion of the Arbitration.
(c)Fees:The Parties also agree that all awards, decisions and remedies in favor of
winning Party hereunder with respect to any issue shall be proportional to the
violation caused by the losing Party with respect to that issue. All costs in
conducting the Arbitration including the Arbitration filing fee, the arbitrator s fees
and expenses, and the prevailing Party s reasonable legal fees and expenses
(including legal fees and costs the prevailing Party incurs in seeking or resisting
temporary or provisional court relief as set forth in Section 1 OC below), shall be the
losing Party's responsibility as directed by the arbitrator. If there are multiple issues
in dispute and no Party prevails on them all, costs and legal fees shall be apportioned
by the arbitrator according to the relative dollar value of each issue. The arbitrator
award shall be final and binding. If either Party must resort to the judicial process to
enforce the provisions of this Agreement, the award of an arbitrator or equitable
relief granted by an arbitrator, the Party seeking enforcement shall be entitled to
recover from the other Party all costs of litigation including reasonable attorneys
fees and court costs.
(d)Injunctive Relief: The Parties agree and acknowledge that money damages may not
be an adequate remedy for any breach of this Agreement's provisions and that any
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Relocation Master Service Agreement Bridger Coal HSR FINAL.doc
10/9/2007
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Section 11.
(a)
Party may. in its sole discretion. apply for and secure specific performance and/or
injunctive relief. without bond. pending final resolution on the merits in order to
enforce or prevent any violations of this Agreement's provisions.
General Provisions
Attorneys' Fees In the event of any litigation between the Parties to this
Agreement, the prevailing Party shall be entitled to immediate payment of all costs
it incurred in the dispute. including, but not limited to. court or arbitration costs and
reasonable attorneys' fees.
(b)Governing Law. This Agreement shall be construed and enforced in accordance
with. and governed by. the laws of the State of Wyoming.
(c)Assignment. Neither Party may assign this Agreement without the other Party
prior written consent. which consent shall not be unreasonably withheld. except that
each Party may assign its interest to an affiliated or successor entity upon prior
written notice to the other Party. If an assignment is permitted, the assigning Party
shall remain liable for all of its duties and obligations hereunder. Any purported
assignment in violation of the provisions hereof shall be void and of no effect. The
terms. covenants. conditions and provisions of this Agreement shall be binding upon
and inure to the benefit of the Parties' successors.
(d)No Third Pa~ Beneficiaries.No Employee or other person, or entity, except for the
Company and HSR shall have any enforceable rights under this Agreement.
(e)No Waiver.Either Party's failure to insist, in anyone or more instances. on strict
performance of any of the provisions or terms of this Agreement shall not be
construed as a waiver or relinquishment of any such provision or term, but the same
shall continue and remain in full force and effect.
(f)Entire Agreement.This Agreement. together with the exhibits annexed hereto,
contains the Parties ' entire agreement with respect to the subject matter hereof and
supersedes any prior oral or written understandings between the Parties regarding
the same.
(g)
No Oral Modification. This Agreement may not be terminated. modified. altered or
amended orally. Any such termination, modification, alteration or amendment shall
be in writing, duly executed by both Parties.
(h)Severability. If any provision in this Agreement shall be determined to be invalid
illegal or unenforceable in any respect, the remaining provisions of this Agreement
shall not be impaired in any way. and the illegal, invalid or unenforceable provision
shall be fully severed fTOm this Agreement, and there shall be automatically added a
replacement provision as similar in terms and intent to such severed provision as
may be legal, valid and enforceable.
€:onHllelllial Page 5
Relocation Master Service Agreement Bridger ColIlJISR FINAL.doc
10/912007
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(i)Captions The captions and headings in this Agreement are included for
convenience of reference only and shall not be interpreted to affect the substance of
the provisions of this Agreement.
(j)
Notices. All notices given by either Party to tl1e other shall be in writing and shall
be given personally or sent by certified mail, postage prepaid, return receipt
requested, to the Parties' respective addresses set forth at the head of this
Agreement. Any Party may change the address to which notices are to be sent by
giving notice to the other in the manner provided above. Notices shall be deemed
given upon receipt or three (3) days after mailing as aforesaid, whichever is earlier.
(k)Equal Opportunity: Non-Discrimination. HSR is an equal opportunity employer and
HSR shall sell, list and otherwise deal with all properties in full compliance with all
laws prohibiting discrimination on the basis of age, race, religion, sex, handicap,
familial status, color, national origin or marital status.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed by
their duly authorized respective officers.
HOMESERVICES RELOCATION, LLC
BY:
PACIFIC MIN
BY:
(Name)Neil Getzelman
PresidentTITLE:
DATE SIGNED:
TITLE:
DATE SIGNED:/€1 /"., /07
C6RFidEirllial Page 6
Rclocation Master Service Agreement Bridger CoaIJ'ISR FINALdoc
J 0/9/2007
EXHIBIT A
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CeflHilelilinl Page 7
Relocation Master Service Agreement Bridger Coal HSR FINAL.doc
10/912007
Bridger Coal Housing Assistance
Benefit Policy Communication
Benefits are being provided to assist eligible Bridger Coal employees with the significant housing
market situation being driven by the energy boom affecting the Rock Springs/Green River
Wyoming area.
Elieibilitv for assistance has been determined based on an assessment of housine market
escalation over the last five years and in coniunction with workforce demands. All elieible
employees that request and receive housine assistance benefits will be required to sien a
retention housine assistance aereement.
Housine Assistance Elieibilitv:
Bridger Coal employees, salaried and hourly, with a Bridger Coal facility hire date on or after
J\ugust 1 , 2004, vvho
.:.
Were hired from an area outside of Rock Springs/Green River (100 mile radius), and
.:. Sign a retention housing assistance agreement at the time benefits are committed, with an
agreement tenn consistent with the elected program s benefit payout tenn
Housine assistance benefits will be available only throueh the defined proerams. Emplovees
need to contact the followine individual to determine the level of benefit and proeram they
qualify for:
Contact Tammy Rivard, Home Services, at [phone] ext. 57336 or via
email at tammy.rivard(Q),hslrelocation.com
Term of Housine Assistance Benefit Offerine:
1. Housing assistance benefits are being offered starting June 2007 to eligible employees, based
on the above eligibility criteria.
2. The housing assistance benefit offering will be in place until December 31 , 2008.
3. The company can tenninate and/or extend the offering at any time based on management's
discretion.
Housine Assistance Benefits:
Housing assistance benefits are being offered to eligible employees based on two categories and
through the below defined programs:
Bridger Housing Assistance Benefit Policy Communication 090807.doc EXHIBIT A
Page lof5 9/7/2007
Bridger Coal Housing Assistance
Benefit Policy Communication
Category I-Rent Assistance (for those not purchasing a home)
1. Total gross assistance benefit of $20 000 and reduced by any sign-on bonus amounts for non-
represented eligible employees.
2. Fifty (50) percent of net benefit to be paid in five annual cash payments, at the completion of
each 12 months employment from the date of signed five-year retention housing assistance
agreement with:
a. The remaining fifty (50) percent of net benefit paid at the completion of the full five-year
retention housing assistance agreement term.
b. Housing assistance benefit payments will be processed through ordinary payroll
processes and are subject to payroll taxes.
Bridger Housing Assistance Benefit Policy Communication 090807.doc EXHIBIT A
Page 2 of 5 9/7/2007
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Bridger Coal Housing Assistance
Benefit Policy Communication
Category 2 - Home Ownership Assistance
1. Total gross assistance benefit of twenty (20) percent of purchase price of home or $50 000
whichever is less, reduced by any sign-on bonus amounts for non-represented eligible
employees, and
2. Paid in accordance with one of the following programs:
.:.
Mortf!af!e Interest Subsidv (for those eligible who have not purchased a home, but plan
to)
a. Set dollar amount annually, paid over a minimum five-year term directly to lender.
b. Execution of a five-year retention housing assistance agreement.
c. Termination of benefits if employee terminates, is severed or relocates.
d. Housing assistance benefit amounts are processed as taxable income annually.
Mortgage Interest Subsidy1. Set dollar amount annually, paid by company directly to lender monthly2. Minimum term of 5 years, maximum of 10 years
Attributes :
Lowers employee payments for 5+ years resulting in gradual payment rise as employee compensation rises2. Subsidy covers interest but employee gets interest tax beneft when filing personal income tax returns3. Employee responsible for payroll taxes on monthly subsidy payment - handled automatically through paYTOnprocessing4. Employee must qualify forfullfinance amount but 100% financing is allowable under the program
Assumplions:Loan Amount $250 000
Mortgage Note Rate: 6.25%
Qualifying Note Rate 6.25%Term: 30Yr Fixed Rate
Subsid EXAMPLE 000- 5 ears
Interest
Rate
110%
110%
110%
110%
110%
6-25%
P&I P&I Monthly Annualat Paid by Subsidy Subsidy RecNote Rate Employee Assistance By Employee
539.29 $ 705.96 $833.33 $10 000
539.29 $ 705.96 $833.33 $10 000
539.29 $ 705.96 $833.33 $10 000
539.29 $ 705.96 $833.33 $10 000
$1.539.29 $ 705.96 $833.33 $10 000
539.29 $1 539.29 -0- -
Total Subsidy Cost: $50,000
Year
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Bridger Housing Assistance Benefit Policy Communication 090807,doc EXHIBIT A
Page 3 of 5 91712007
Bridger Coal Housing Assistance
Benefit Policy Communication
.:.
Corporate Second Mort1!a1!e Guarantv (for those eligible who have not purchased a
home, but plan to)
a. Execution of a five-year retention housing assistance agreement.
b. Second mortgage established for total benefit amount.
c. Second mortgage term is five years.
d. Company pays monthly second mortgage payments.
e. Second mortgage is recorded as lien on property.
Guarantor (Company) has right to call principal due, if employee terminates, is
severed or relocates.
g. Housing assistance benefit amounts are processed as taxable income annually.
2nd MortaaaeGuaran1. Company Guarantees 2"" Mortgage for benefit amount (20% of purchase price up to maximum of $50 000)2. Recorded as lien on Property, Guarantor has rightto call the principal due if employee terminates or relocates
Attributes:1. Serves as down payment2. Employee only required to qualifyfof 1" mortgage amount with 100% financing allowable under the program3. Likely avoids mortgage insurance resulting in lower payments for term of 1" mortgage4. Employee gets interest tax benefit when filing personal income tax returns5. Employee responsible for payroll taxes on monthly 2nd payment - handled automatically through payrollprocessing
Cor orate Second EXAM PLE~
Example without Corporate Second Example with Corporate Second
Purchase - $250 000
Mortgage Amt - $250 000
InterestRate-25% (usedfor example)
Product - 30 Year Fixed
Principal + Interest Pymt = $1 539.29Imo
Note: Mortgage Insurance Additional
Purchase - $250 000
Corporate 2nd - $50 000
Mortgage Amt - $200 000
InterestRate-6.25% (used for example)
Product - 30 Year Fixed
Principal + Interest Pymt = $1 231.431mo
Note: Mortgage Insurance Avoided
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Bridger Housing Assistance Benefit Policy Communication _090807 ,doc EXHIBIT A
Page 4 of 5 9/7/2007
Bridger Coal Housing Assistance
Benefit Policy Communication
.:.
Cash Pavment Pro1!ram (for those eligible who have already purchased a home)
a. Execution of a five-year retention housing assistance agreement with Bridger Coal
service to date applied, and a minimum three-year future commitment to remain from
date of execution.
b. Benefit amount to be based on proof of mortgage purchase price and date, pro-rated
over five-year term then adjusted (reduced) for:
Sign-on bonus amounts (if previously provided) for non-represented employees
and
Up to a maximum of three service years completed with remaining benefit to be
paid directly to employee through payroll processing in annual installments, paid
at the completion of each 12 months employment from the date of signed
retention housing assistance agreement for remaining agreement term.
c. Housing assistance benefit payments will be processed through ordinary payroll
processes and subject to payroll taxes.
Cash Payment Attributes1, Benefit amount = 20% of purchase price or $50,000, whichever is lower
Prorated over five-year employment term = annual gross benefit
Annual gross benefit reduced for sign-on bonus (for non-represented eligible employees) and then reduced for term from
purchase date (maximum three years) = net benefit to be paid over minimum three-year remaining employment term2, Annual net benefit amounts paid to employee through payroll processing following completion of each 12
months employment from signature date of employment agreement
Cash pavmen~ EXAMPLE
Yr2
Net
benefit
Purchase Date
2004 2005 2006
Yrl
Yr2
10000 Yr3
~;;;j~j
..p:fil"\:iiii/~M.i~~-\i;,iiW,)1;~,
j: .
Yr4 Yr56666 6667 $ 50,000 $ 20,000
10000
10000
Yrl
10000
10000
Yrl
Yr3 Yr4 Yr510000 10000 10000 $ 50,000 $ 30,000
10000
Yrl
Yr2 Yr3 Yr4 Yr510000 10000 10000 10000 $ 50,000 $ 40 000
6000
ya Yd Y~ 6000 6000 6000 6000 $ 30,000 $ 24,000
Bridger Housing Assistance Benefit Policy Communication 090807,doc EXHIBIT A
Page 5 of 5 91712007
EXHIBIT 2
Master Subsidy Agreement between
HomeServices Lending and Bridger Coal Company
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MASTER SUBSIDY AGREEMENT
THIS MASTER SUBSIDY AGREEMENT ("Agreement") is made effective as of October 22
2007, by and between HomeServices Lending ("HSL"), having an office at One Home
Campus, Des Moines , Iowa 50328-0001 and Bridger Coal Company, a joint venture with
Pacific Minerals, Inc., a Wyoming Corporation and Idaho Energy Resources Company, a
Wyoming Corporation , having an office at P.O. Box 68, Point of Rocks, Wyoming 82942.
RECITALS:
HomeServices Lending ("HSL") makes residential mortgage loans. ("Mortgage Loans
available to relocating employees of corporate clients through HSL's relocation mortgage
program; and
Company desires to participate in the program and make its subsidy plan available to its
eligible employees obtaining a Mortgage Loan with HSL; and
The parties wish to enter into an agreement to set forth the terms and conditions for billing,
payment and application of subsidy funds for Mortgage Loans originated by HSL for
Company s relocating employees.
NOW THEREFORE, Company and HSL agree as provided below. Any terms not herein
defined are defined as specified in the attached Exhibit A.
1. AUTHORIZATION AND PAYMENT OBLIGATIONS
The Company, or its authorized agent, will inform HSL in writing or via email of the name of
each employee who is authorized to receive a closing cost and/or subsidy contribution fromthe Company ("Authorized Employee ), together with any terms and conditions of the
contribution. Such written or email authorization will be sufficient to establish the Company
obligation to reimburse HSL for such costs and charges in accordance with this Agreement.
Each Authorized Employee will be required to sign an individual subsidy agreement
Individual Subsidy Agreement") in a form substantially similar to that in Exhibit A, which is
attached to this Agreement and incorporated by reference, the terms to which Company
agrees. Company shall pay to HSL the total Subsidy Funds required by the Plan as specified
for each Authorized Employee in his/her Individual Subsidy Agreement.
2. BILLING AND PAYMENT OF SUBSIDY
(a) Initial BillinQ. The total amount of the Subsidy Funds payable during the Initial
Period will be billed to the Company Of, if instructed by Company, Company
authorized agent by HSL after the closing of each Authorized Employee s Mortgage
Loan at an address agreed to by the parties. The Company agrees to pay HSL the
full amount of the invoice within thirty (30) days of the invoice date.
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(b) Annual BillinQ . On or about December 1 of each year the Individual Subsidy
Agreements remain in effect, HSL shall bill the Company or, if instructed
Company, Company s authorized agent for the total amount of Subsidy Funds due
and payable by the Company with respect to the following calendar year. The
payment due date for these annual invoices will be on or about January 1 of the
following year.
(c) Late CharQe. The Company will be required to pay a late charge accruing at the
rate of 12% per annum on all amounts not received by HSL within thirty (30) days of
any invoice date, commencing on the thirty-first (31st) day.
3. APPLICATION OF SUBSIDY FUNDS
(a) Generally Provided HSL has received from the Company sufficient Subsidy
Funds, HSL shall, upon receipt of the Mortgagor Monthly Payment Amount, apply
the Monthly Assistance Payment to the payment due under each Mortgage Note.
(b) In the event of default or foreclosure. No Subsidy Funds shall be applied to (i)
satisfy any past due payments owed by any Authorized Employee, (ii) cure any
delinquency or default under the terms of any Mortgage Note and/or Mortgage, or
(iii) reinstate any Mortgage Loan. Upon the occurrence of any default, HSL will be
entitled to exercise any and all rights to which it is entitled under the terms of the
respective Mortgage Note and/or Mortgage. The Subsidy Funds are not a
prepayment of interest nor partial satisfaction of any Authorized Employee
obligation under his or her Mortgage Note. If the property securing any Mortgage
Note and/or Mortgage is sold pursuant to a non-judicial or judicial foreclosure
proceeding, the Monthly Assistance Payments provided by Company for the
remaining term of the applicable subsidy period shall not be applied toward anysums due from the respective Authorized Employee. In the event of
commencement of foreclosure proceedings or the acceptance of a deed in lieu of
foreclosure, the respective Individual Subsidy Agreement will terminate in
accordance with paragraph 5 below and any remaining unapplied Subsidy Funds
will be paid to Company in accordance with said paragraph of this Agreement.
4. INTEREST IN SUBSIDY FUNDS
The parties acknowledge that the purpose of the Subsidy Funds is solely for the use by HSL
to apply as Monthly Assistance Payments toward payment of the amount of principal and
interest due for the scheduled monthly payments under the terms of the Mortgage Note(s).
Except as provided in paragraphs 3(b) and 5(c) herein, the Company relinquishes any right
title or interest in the Subsidy Funds. No Subsidy Funds shall be pledged or otherwise set
aside for the benefit of any Authorized Employee or Company or their successors, except as
otherwise provided in this Agreement.
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5. TERMINATION OF SUBSIDY
(a) Prior to expiration of subsidy period . Each Individual Subsidy Agreement shall
terminate, and no further Subsidy Funds for the respective Authorized Employee
shall be applied , upon (i) receipt by HSL from the Company of written notice of the
death, retirement, resignation or termination of employment of said Authorized
Employee (or any other event which results in the Authorized Employee no longer
performing substantial services as an employee of the Company), (ii) the full
prepayment of the Mortgage Loan by the Authorized Employee, (iii) the sale or
transfer by the Authorized Employee of the property securing the Mortgage Loan as
a result of which HSL is entitled to accelerate the Mortgage Loan pursuant to the
due-on-sale" clause contained in the Mortgage, or (iv) the commencement of
foreclosure proceedings or the acceptance of a deed in lieu of foreclosure. Any
such notice of termination by Company will be effective as of the first day of the
month after notice is given, provided that the notice of termination has been
received by HSL in writing no less than fifteen (15) days prior to the first day of the
month. In addition, in the event HSL does not receive the Subsidy Funds as
provided under the terms of this Agreement, HSL has the option to terminate the
affected Individual Subsidy Agreement and this Agreement (as applicable) for
breach effective immediately upon notice from HSL to Company and the affected
Authorized Employee(s).
(b) Expiration of subsidy period If not earlier terminated pursuant to paragraph 5(a)
herein, the Authorized Employee s benefits under his or her Individual Subsidy
Agreement(s) shall automatically terminate as of the effective date of termination
specified in the Individual Subsidy Agreement, and no additional Subsidy Funds for
that Authorized Employee shall be applied subsequent to such date.
(c) Payment obli!::!ations upon termination of subsidy Upon termination of the
Individual Subsidy Agreement, beginning with the first monthly payment of principal
and interest due after the termination of said agreement and continuing for the
remainder of the term of the respective Mortgage Loan, the Authorized Employee
shall pay the entire monthly installment of principal and interest, as provided in his
or her Mortgage Note. After termination of each Individual Subsidy Agreement
Company shall still be responsible for paying any unpaid Subsidy Funds and late
charges due and owing to HSL during the term of said agreement. Similarly, HSL
shall, within sixty (60) days of the effective date of termination , be responsible for
paying to Company any remaining Subsidy Funds received but unapplied under the
terms of the respective Individual Subsidy Agreement, as of the effective date of
termination.
6. PAYMENT LIABILITY UNDER THE MORTGAGE NOTE
During the full term of each Mortgage Note, including the subsidy period, each Mortgage
Loan will amortize at its Mortgage Note interest rate. Each Authorized Employee will remain
primarily liable for payment of the full monthly payment of principal and interest as provided
in the Authorized Employee s Mortgage Note, and for all other obligations of the Authorized
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Employee as provided in his or her Mortgage Note and Mortgage, notwithstanding the
Company s obligations under this Agreement. The Company is not a borrower, co-signer or
obligor on the Authorized Employee s Mortgage Note and has no obligation to repay any
portion of the amounts due under the Mortgage Note.
(a)
(b)
(c)
INDEMNIFICATION
The Company agrees to indemnify HSL its officers, directors, agents and
employees, and any other person or entity who acquires any interest in any
Authorized Employee Mortgage Loan, and defend and hold them harmless against
any liability or loss resulting from (i) any failure by the Company, its officers
directors, agents and employees to comply with any and all applicable federal , state
and local income tax laws and regulations in connection with this Agreement or the
Plan; and (ii) any claim of any Authorized Employee arising out of the Plan, this
Agreement or out of the Company s termination of this Agreement or the Plan
except to the extent such claim arises from the acts or omissions of HSL, its officer,
directors, agents and employees.
HSL agrees to indemnify the Company, its officers, directors, agents and
employees, and defend and hold them harmless against any liability or loss
resulting from (i) any failure by HSL to comply with any and all applicable federal
state and local laws and regulations in connection with this Agreement or the Plan;
and (ii) any claim of any Authorized Employee arising out of the Plan, this
Agreement or out of the Company s termination of this Agreement or the Plan , to
the extent such claim arises from the acts or omissions of HSL, its officer, directors
agents and employees.
With respect to the provisions of Section 13 of this Agreement, each party shall
indemnify, defend and hold harmless the other parties against any and all losses
damages , claims, expenses and attorneys' fees incurred or suffered by the other
parties as a result of a breach of Section 13 of this Agreement by the indemnifying
party or any of its representatives, including without limitation the cost of notifying
any customer or consumer of any unauthorized access to Nonpublic Personal
Information (as defined below).
TERMINATION OF AGREEMENT
In addition to termination as provided in paragraph 5(a) herein, this Agreement may be
terminated by either HSL or the Company upon ninety (90) days prior written notice to the
other party, but no termination of this Agreement shall affect the rights of the parties with
respect to (a) Mortgage Loans held by HSL, its successors or assigns, including but not
limited to any subsidy Mortgage Loan, originated by HSL under the terms of any Authorized
Employee s Individual Subsidy Agreement, or (b) Mortgage Loans committed to be made by
HSL but unfunded as of the date of termination. Termination of this Agreement does not
terminate any Authorized Employee s Individual Subsidy Agreement or any obligation by
Company as it relates to any such individual subsidy agreement, including but not limited to
Company s Subsidy Fund payment obligation.
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9. NOTICES
Except as to communications under paragraphs 1 and 2, all notices, demands and other
communications under this Agreement shall be in writing and shall be deemed to have been
duly given if delivered in person , by reputable express mail carrier, or by United States mail
certified or registered with return receipt requested to the address(es) as follows:
If to Company:
with a copy to:
If to HSL:
with a copy to:
Bridger Coal Company
O. Box 68
Point of Rocks, WY 82942
Attn: Carl Polson
Bridger Coal Company
O. Box 68
Point of Rocks, WY 82942
Attn: Patrick Akers
HomeServices Lending
333 South th Street, 27th Floor
Minneapolis, MN 55402
Attn: General Counsel
Wells Fargo Home Mortgage
One Home Campus
MAC X2406-0 11
Des Moines, Iowa 50328-0001
Attn: General Counsel
The persons and addresses to whom mailings or deliveries shall be made may change by
notice to the other party.
10. SUCCESSORS AND ASSIGNS
All terms and provisions of this Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective transferees, successors and assigns.
11. GOVERNING LAW
This Agreement shall be construed and enforced in accordance with the laws of the State
Iowa.
12. ENTIRE AGREEMENT
This Agreement embodies the entire understanding of the parties and there are no further or
other agreements or understandings , written or oral, in effect between the parties relating to
the subject matter hereof. This instrument may only be amended or modified by written
instrument signed by both parties or their duly authorized agents.
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13. CONFIDENTIALITY
(a)Confidential Information.
(1) "Confidential Information" means any information that is transmitted or otherwise
provided by or on behalf of one party (the "Discloser ) to any other party (the
Recipient") to this Agreement in connection with, or as a result of, this Agreement
and which should reasonably be understood by the Recipient to be proprietary and/or
confidential to the Discloser.
(2) Confidential Information also includes (a) "nonpublic personal information" about
customers" and "consumers" (as those terms are defined in Title V of the Gramm-
leach-Bliley Act and its related privacy regulations), and (b) any information subject
to Section 628 of the Fair Credit Reporting Act and any related regulations or
guidelines (collectively referred to in this Agreement as "Nonpublic Personal
Information ). Title V of the Gramm-leach-Bliley Act, Section 628 of the Fair Credit
Reporting Act, and any related regulations or guidelines, are collectively referred to in
this Agreement as the "Privacy Regulation.
(3) Confidential Information does not include information that (i) is in the public
domain as demonstrated by written or other tangible evidence or enters into the
public domain through no wrongful act or breach of any obligation of confidentiality by
Recipient; (ii) was in the knowledge and possession of Recipient free of any
confidentiality obligation, or was independently developed by Recipient prior to the
time it was disclosed to Recipient by Discloser; (Hi) is at any time rightfully received by
the Recipient from a third party who has an independent right to such information; or
(iv) is identified by Discloser as no longer confidential or is approved in writing for
release by the Discloser prior to such release.
(b)Protection of Confidential Information.
(1) Recipient acknowledges that Confidential Information has been developed or
obtained by Discloser by the investment of significant time, effort and expense , and
that Confidential Information is a valuable, special and unique asset of Discloser
which provides Discloser a significant competitive advantage. Therefore, Recipient
agrees to hold in confidence and to not disclose Confidential Information to any
person or entity, except as expressly authorized in this Agreement or otherwise with
the express prior written consent of Discloser.
(2) Recipient agrees (i) to use Confidential Information solely for the purpose of
carrying out the transactions undertaken in the context of such business relationship;
(ii) to not, directly or indirectly, otherwise use any Confidential Information for
Recipient's own benefit or on its own behalf or for the benefit or on behalf of others
for any other purpose; (iii) to use the same degree of care to maintain the security of
Confidential Information as Recipient uses to protect its own confidential and
proprietary information (which shall be a degree of care not less than may be required
by applicable law, if any, or otherwise as followed in the industry); (iv) to safely and
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securely dispose of all Confidential Information, and (v) to disclose Confidential
Information to Recipient's Representatives under confidentiality obligations consistent
with this Agreement and only on a need-to-know basis for performance of such
Representative s duties in connection with an authorized use of the Confidential
Information.
(c)Special Provisions for Use of Nonpublic Personarlnformation.
(1) Each Recipient represents and warrants to the Discloser with respect to any
Nonpublic Personal Information disclosed to it: (i) Recipient controls access to the
network (information system) on which any such Nonpublic Personal Information is
stored, through the compliance with and utilization of its information security
measures which restrict access; and (ii) Recipient shall comply with its information
security measures.
(2) Each Recipient covenants to the other parties that with respect to Nonpublic
Personal Information Disclosed to the Recipient under this Agreement, the Recipient
will (i) comply with the terms and provisions of the Privacy Regulation, including the
provisions regarding the sharing of Nonpublic Personal Information; (ii) not disclose or
use any Nonpublic Personal Information that it receives from a Discloser except to
carry out the purposes for which such Nonpublic Personal Information was provided
or as otherwise permitted by the Privacy Regulation and other applicable laws; (iii)
comply with its information security standards; (iv) properly and securely dispose of
all Nonpublic Personal Information; (v) not make any changes to its security
measures that would increase the risk of an unauthorized access; and (vi) not
disclose any Nonpublic Personal Information disclosed to it to any other entity, except
as follows: (A) to Discloser s affiliates, with the prior consent of Discloser; (8) to its
own affiliates, provided, that its affiliates may, in turn, disclose and use the
information only to the extent that Recipient may disclose itself and use the
information; and (C) to a nonaffiliated third party, in the ordinary course of business
in order to carry out the activity for which the information was disclosed to Recipient
pursuant to one of the exceptions to the Privacy Regulation. Recipient agrees to
promptly notify any customer whose Nonpublic Personal Information is accessed by
any unauthorized person while in the custody of Recipient or any of its affiliates or
subcontractors. Provided, that with respect to any consumer who becomes a
customer of HSL, the use of Nonpublic Personal Information of such customer by
HSL shall thereafter be governed by HSL's then-current Privacy Policy and all
applicable state and federal law, and not this Agreement.
(d)The parties agree that the Confidential Information disclosed pursuant to this
Agreement are of a special , unique, and extraordinary character, that the Discloser
would be irreparably harmed by any disclosure of the Confidential Information
violation of this Agreement, and that the use of the Confidential Information for the
business purposes of any party other than in connection with this Agreement or any
third party, would enable such party or third party to compete unfairly with the
Discloser. For these reasons, the Recipient agrees that the Discloser shall be
entitled to injunctive relief to prevent further use and/or disclosure in addition to all
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other remedies available to the Discloser in law or in equity for any breach of this
Agreement.
HOMESERVICES lENDING PACIFIC MINERALS, INC. ON BEHALF OF
BRIDGER C Al COMPANY
(Signature)
(Name)
Neil L. Getzelman
(Name)
(Date)
President. Pacific Minerals, Inc. and
member of Bridqer Manaqement
Committee
(Title)
/0/(:)/07
(Date)
(Title)
CulIl'Idt:HIIiOiI
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EXHIBIT 3
Employee Home Equity Financing Guaranty Agreement between
Wells Fargo Home Equity and Bridger Coal Company
Employee Home Equity Financing Guaranty Agreement
Parties. The Parties to this Employee Home Equity Financing Guaranty Agreeme~t
effective October 22, 2007 Agreement"), are Bridger Coal Company, a joint venture with
Pacific Minerals, Inc., a Wyoming Corporation and Idaho Energy Resources Company, a
Wyoming Corporation ("Employer ) and Wells Fargo Home Equity a division of Bank
National Association ("Wells Fargo Home Equity") (Employer and Wells Fargo Home
Equity are individually and collectively the "Party" and the "Parties" respectively.
Recitals. This Agreement documents the terms and conditions under which Wells Fargo
Home Equity will offer Employer s Eligible Employees (as designated by Employer in
writing pursuant to Attachment A) home equity financing. As set forth herein, Wells
Fargo Home Equity shall provide Eligible Employees with a home equity loan secured by
a second or subordinate position lien on the Eligible Employee s residence, the repayment
of which is guaranteed in whole by the Employer (the "Loan ). Employer agrees that the
Employer shall purchase the Loan of any Eligible Employee whose employment with
Employer terminates for any reason or who has defaulted in hislher obligations under the
Loan and that Employer guarantees all payments to Wells Fargo Home Equity of
principal, interest, costs and expenses for each such Loan.
Agreement. In consideration of the mutual promises in this Agreement and for other
good and valuable consideration, the receipt and adequacy of which the Parties hereby
acknowledge, Wells Fargo Itome Equity agrees to make Loans to Eligible Employees as
defined in Attachment A to this Agreement, in accordance with the Lending Procedures
set forth in Attachment A to this Agreement ("Lending Procedures ), a copy of which is
attached hereto and incorporated herein by this reference as though set forth in full.
Employer agrees to purchase the Loan of any Eligible Employee in the event that the
Eligible Employee s employment with Employer terminates for any reason whatsoever or
in the event that the Eligible Employee defaults under the terms of the Loan documents
including but not limited to the loan agreement, the mortgage, or the deed (the "Loan
Documents ) Furthermore, the Employer agrees to guaranty all payments of principal
and interest, as well as the reasonable costs and expenses incurred by Wells Fargo Home
Equity, if any, in connection with each Loan.
Purchase of Loan. In the event Eligible Employee s employment has terminated
Employer shall promptly notify Wells Fargo Home Equity in writing and Employer is
obligated to purchase the Loan. Within ten (10) days of its receipt of such notification
Wells Fargo Home Equity shall notify Employer in writing of the purchase price for such
Loan. In the event that the Eligible Employee has defaulted in hislher obligations under
the Loan Documents, Wells Fargo Home Equity shall notify the Employer in writing of
the default and the amount of the purchase price for such Loan. The purchase price shall
equal the unpaid principal balance of such Loan plus all accrued and unpaid interest
unpaid closing costs, as well as costs, and expenses, if any, thereon up to the date that
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Corporate Guarantee Master Contract Bridger Coal- final.doc
Wells Fargo Home Equity sells, transfers and assigns the Loan to Employer. Employer
shall remit payment for any purchased Loan to Wells Fargo Home Equity by wire or
Employer s check within thirty (30) days of receipt of notification by Wells Fargo Home
Equity of the purchase price of the Loan..
Employer Guaranty. To induce Wells Fargo Home Equity to make Loans to Eligible
Employees, Employer absolutely and unconditionally guaranties to Wells Fargo Home
Equity the full and prompt payment when due of each and every Loan, including all
monthly and annual payments of interest or principal and interest, payments due at
maturity, payments due upon acceleration of the Loan, payments due in the event
Employer purchases a Loan, and closing costs for each Loan including, but not limited to
title insurance, homeowner s insurance, flood insurance (if required), recording fees,
origination fees, commitment fees, and any state or local taxes and any other costs or
expenses incurred in connection with the collateral property or Eligible Employee
default, if any. Employer understands that this guaranty is irrevocable; that this guaranty
is one of payment and not collection, which means Wells Fargo Home Equity can insist
that Employer pay it immediately; that Wells Fargo Home Equity is not required to
attempt to collect from an Eligible Employee; and that if any moneys become available to
apply to a Loan, Wells Fargo Home Equity shall apply them in accordance with the terms
of the written Loan agreement between Wells Fargo Home Equity and such Eligible
Employee. Employer understands and agrees that Wells Fargo Home Equity has
information or may obtain information regarding the Eligible Employee that is protected
by law from disclosure to Employer. Furthermore, Employer agrees that Wells Fargo
Home Equity is not required to exercise any rights that it has against an Eligible
Employee or the collateral property in order for Wells Fargo Home Equity to exercise its
rights under this Agreement.
If Employer is a corporation, Employer represents and warrants that it expects to derive
substantial benefits from the Eligible Employee and from any Loans, and that this
guaranty is given for a corporate purpose. So long as this guaranty remruns in effect,Wells Fargo Home Equity may rely conclusively on a continuing warranty, hereby made
that Employer continues to be benefited by this guaranty and Wells Fargo Home Equity
shall have no duty to inquire into or confirm the receipt of any such benefits, and this
guaranty shall be effective and enforceable by Wells Fargo Home Equity without regard
to the receipt, nature or value of any such benefits.
It is the intent of Employer and Wells Fargo Home Equity that Employer s obligations
and liabilities under this Section shall be absolute and unconditional under any and all
circumstances. Employer waives (a) any and all requirements that Wells Fargo Home
Equity institute any actions or proceedings or exhaust any or all Wells Fargo Home
Equity's rights or remedies against any Eligible Employee or any other person as a
condition precedent to requesting payment from Employer under this Guaranty, and (b)
any defense arising by reason of any disability, insolvency, lack of capacity or authority,
death or any other defense of any Eligible Employee, it being agreed that Employer shall
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Corporate Guarantee Master Contract Bridger Coal- final.doc
remain liable hereunder, regardless of whether Eligible Employee or any other person is
not liable under the Loan Agreement for any reason.
Expenses. Wells Fargo Home Equity shall bear the expense of preparing, delivering and
mailing all Loan Documents, forms, statements and notices, including adverse actiop.
notices, required by law to be delivered to Eligible Employees. Each Party to this
Agreement shall otherwise pay its own costs and expenses (including attorneys' fees)
incurred with the preparation, negotiation, and administration of this Agreement.
Nothing in this Section 6 shall be construed to limit or qualify Employer s obligations to
reimburse and indemnify Wells Fargo Home Equity in cOlmection with certain expenses
incurred by Wells Fargo Home Equity, as more fully provided in this Agreement.
Representations and Warranties of Employer.
warrants to Wells Fargo Home Equity that:
Employer represents and
(1)
(2)
Employer is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction in which it has been
incorporated and has the corporate power and authority necessary to own
its assets, carry on its business and enter into and perform its obligations
hereunder.
The execution, delivery and performance of this Agreement are within
Employer s power and authority, have been duly authorized by all
necessary corporate action, and do not contravene (i) Employer s articles
of incorporation or by-laws, (ii) any law, rule, regulation, order, writ
judgment, injunction, decree, determination or award, or (iii) any
contractual restriction binding on or affecting Employer or its assets.
(3)No authorization or approval or other action by, and no notice to or filing
with, any governmental authority or regulatory body is required for the due
execution, delivery or performance by Employer of this Agreement.
(4)The Agreement is, or when executed and delivered by Employer will be
the legal, valid and binding obligation of Employer enforceable against
Employer in accordance with its terms.
Representations and Warranties of Wells Fargo Home Equity. Wells Fargo
Home Equity represents and warrants to Employer that:
(1)Wells Fargo Home Equity (i) is a national banking association, validly
existing and in good standing under the laws of the United States of
America, and (ii) has the power and authority necessary to own its assets
carry on its business and enter into and perform its obligations hereunder.
Cw1tid~Rtilll
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(2)
(3)
(4)
The execution, delivery and performance of this Agreement are within
Wells Fargo Home Equity's power and authority, have been duly
authorized by all necessary action, and do not contravene (i) Wells Fargo
Home Equity's charter or by-laws, (ii) any law, rule, regulation, order,
writ, judgment, injunction, decree, determination or award, or (iii) any
contractual restriction binding on or affecting Wells Fargo Home Equity or
its assets.
No authorization or approval or other action by, and no notice to or filing
with, any governmental authority or regulatory body is required for the due
execution, delivery or performance by Wells Fargo Home Equity of this
Agreement.
The Agreement is, or when executed and delivered by Wells Fargo Home
Equity wilt be, the legal, valid and binding obligation of Wells Fargo
Home Equity enforceable against Wells Fargo Home Equity in accordance
with its terms.
Credit Qualification on Loans. Employer understands that its obligations and
responsibilities hereunder apply regardless of whether Wells Fargo performs a credit
qualification of the Eligible Employee and the Eligible Employee s residence and/or
requires that the Eligible Employee and the Eligible Employee s residence meet Wells
Fargo Home Equity's then current credit underwriting standards. In its sole discretion
Wells Fargo Home Equity may agree to make Loans available to Eligible Employees
based on the Employer s guaranty and agreement hereunder; however, it is Wells Fargo
Home Equity s intent to require each Eligible Employee and the Eligible Employee
residence to meet Wells Fargo Home Equity's then current credit underwriting standards.
Nevertheless, whether Wells Fargo Home Equity requires or does not require credit
qualification with respect to any Loan(s), the Employer s guaranty and repurchase
obligations as to the Loan(s) shall not be changed, limited or modified in any way.
Employer agrees that Wells Fargo Home Equity has no duty to share with or disclose to,
and in fact, is prohibited by law, from disclosing any information resulting from any
credit qualification of the Eligible Employee or the Eligible Employee s residence with
the Employer.
Modification, Renewal or Extension of Loans. In the event that Employer fails to meet
its obligations hereunder, including but not limited to, its timely failure to purchase a
Loan or its timely failure to make the required payments on a Loan, Wells Fargo Home
Equity may modify, renew or amend the Loan, in accordance with applicable law and
prudent commercial and consumer banking standards. Notwithstanding any such
modification, renewal or extension, the Loan shall remain subject to the Employer
guaranty of payment and purchase obligation as described herein.
OltiiaelltiBI
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10. Indemnification. Except as otherwise provided in this Agreement, Employer agrees to
indemnify and hold Wells Fargo Home Equity harmless from and against all liability,
loss, damage and expense (including the actual and reasonable cost and expense of
enforcing its rights under this Section, if any) actually suffered or incurred by Wells
Fargo Home Equity in any case where such liability, loss, damage or expense arises frotp
or relates to any breach by Employer of any representation or warranty made by Employer
hereunder, or the failure by Employer to observe any of its covenants or obligations
hereunder. Except as otherwise provided in this Agreement, Wells Fargo Home Equity
agrees to indemnify and hold Employer harmless from and against all liability, loss
damage and expense (including the actual and reasonable cost and expense of enforcing
its rights under this Section, if any), actually suffered or incurred by Employer in any case
where such liability, loss, damage or expense arises from or relates to any breach by
Wells Fargo Home Equity of any representation or warranty made by Wells Fargo Home
Equity hereunder, or by the failure by Wells Fargo Home Equity to observe any of its
covenants or obligations hereunder. The Parties' obligations under this Section 10 shall
survive the tennination of this Agreement.
11.Termination. Either Party may terminate this Agreement by giving the other Party
written notice thereof. Such termination shall be effective thirty (30) days after receipt of
such written notice, except that any such termination shall not affect the rights and
obligations of the Parties hereunder in respect to any Loans outstanding as of termination
and any advances to be made thereafter pursuant to the terms of any Loans outstanding,
including the obligations of Employer under Sections 4 and 5 of this Agreement and the
obligations of Employer and Wells Fargo Home Equity under Sections 8 through 10 and
15 of this Agreement.
12.Notices. All notices and other communication by either Party under this Agreement shall
be in writing, and shall be (a) personally delivered, (b) transmitted by telegram, telecopier
or telefacsimile, or (c) mailed via United States registered or certified mail, return receipt
requested, electronic mail, postage prepaid, to the other Party at its address indicated
below, or to such other address as such other Party shall specify by notice hereunder. A
notice or other communication to a Party shall be effective the date of delivery to such
address of the Pm1y.
If to Employer:Bridger Coal Company
O. Box 68
Point of Rocks, WY 82942
Attn: Carl Polson
with a copy to:Bridger Coal Company
O. Box 68
Point of Rocks, WY 82942
Attn: Patrick Akers
CgRHllentidl
Corporate Guarantee Master Contract Bridger Coal- final.doe
Page 5 10/9/2007
lfto Wells Fargo Home Equity:Melissa Lucero
Administrative Assistant
526 Chapel Hills Drive
Colorado Springs, CO 80920
Phone: [phone]
Fax: [phone]
13.Assignment and Binding Effect. This Agreement shall not be assigned or transferred by
either Party without the prior written consent of the other Party, provided, however, Wells
Fargo Home Equity may assign Loans and the right to make Loans from time to time to
its affiliates, and Wells Fargo Home Equity shall promptly notify Employer of any such
assignment. Any assignment attempted in violation of this Agreement shall be null and
void. This Agreement and the Parties' respective rights and obligations hereunder shall be
binding upon and inure to the benefit of the Parties hereto and their respective successors
and assigns.
14.Entire Agreement. This Agreement and the Attachments hereto constitute a complete
statement of all the arrangements between the Parties as of the date hereof with respect to
the transactions contemplated hereby, and supersede all prior agreements and
understandings between them relating to the subject matter hereof. This Agreement may
be modified, revised or amended only by consent of the Parties as evidenced by a written
agreement duly executed by the Parties hereto.
15.Settlement of Disputes.
A. Binding Arbitration Required. Upon the demand of either Party, any Dispute shall be
resolved by binding arbitration in accordance with the terms of this Section 14 except as set
forth in subsection (e) below. A "Dispute shall mean any action, dispute, claim or
controversy of any kind, whether in contract or tort, statutory or common law, legal or
equitable, now existing or hereafter arising under or in connection with, or in any way
pertaining to this Agreement. Any Party may, by summary proceedings, bring an action in
court to compel arbitration of a Dispute. Any Party who fails or refuses to submit to
arbitration following a lawful demand by the other Party shall bear all costs and expenses
incurred by such other Party in compelling arbitration of any Dispute.
B. Arbitration Association and Rules. Arbitration proceedings shall be administered by
the American Arbitration Association (" AAA "), or such other administrator as the Parties
shall mutually agree upon. Arbitration shall be conducted in accordance with the AAA
Commercial Arbitration Rules. If there is any inconsistency between the terms hereof and
any such rules, the terms and procedures set forth herein shall control. All Disputes
submitted to arbitration shall be resolved in accordance with the Federal Arbitration Act
(Title 9 of the United States Code). The arbitration shall be conducted at a location in
CQllwl!eRli!l!-
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':.': ;' -,:::;,:: ,;
'c:,:: E::;i:,:;fX",YiJ:iiKE; )l;Z~D;:8i;;JL;E'E.'t:;:;2,~:;:1 ax; iE;, ::,rj~:T'J!;?:::7T Z:'D7?:;!;~:'7::S53'E?2itiI;:;;51 C~;:;:2:E~Z, Zg 5: e, s~;:c;~z ED':Z7ECCT~%Zj.2:l!i2'iJ: ~-ZB:T~.t:;E.
California selected by the AAA or other administrator. All statutes of limitation applicable to
any Dispute shall apply to any arbitration proceeding. All discovery activities shall be
expressly limited to matters directly relevant to the Dispute being arbitrated. Judgment upon
any award rendered in an arbitration may be entered in any court having jurisdiction;
provided however, that nothing contained herein shall be deemed to be a waiver, by any Party
that is a bank of the protections afforded to it under 12 V.C. 991 or any similar applicable
state law.
C. Ancillary Remedies. No provision hereof shall limit the right of either Party to obtain
provisional or ancillary remedies, including without limitation injunctive relief, attachment or
the appointment of a receiver, from a court of competent jurisdiction before, after or during
any arbitration or other proceeding. The exercise of any such remedy shall not waive the
right of a Party to compel arbitration hereunder.
D. Arbitrator & Choice of Law. Arbitrators must be active members of the California
State Bar or retired judges of the state or federal judiciary of California, with expertise in the
substantive laws applicable to the subject matter of the Dispute. Arbitrators are empowered
to resolve Disputes by summary rulings in response to motions filed prior to the final
arbitration hearing. Arbitrators (i) shall resolve all Disputes in accordance with the
substantive law of the state of California, (ii) may grant any remedy or relief that a court
the state of California could order or grant within the scope hereof and such ancillary relief as
is necessary to make effective any award, and (iii) shall have the power to award recovery
all costs and fees, to impose sanctions and to take such other actions as they deem necessary
to the same extent a judge could pursuant to the Federal Rules of Civil Procedure, the
California Rules of Civil Procedure or other applicable law. Any Dispute in which the
amount in controversy is $5 000 000 or less shall be decided by a single arbitrator who shall
not render an award of greater than $5 000 000 (including damages, costs, fees and
expenses). By submission to a single arbitrator, each Party expressly waives any right
claim to recover more than $5 000 000. Any Dispute in which the amount in controversy
exceeds $5 000 000 shall be decided by majority vote of a panel of three arbitrators; provided
however, that all three arbitrators must actively participate in all hearings and deliberations.
1. Findings and Conclusions. Notwithstanding anything herein to the contrary, in any
arbitration in which the amount in controversy exceeds $5 000 000, the arbitrator shall be
required to make specific, written findings of fact and conclusions oflaw.
2. Damages. The arbitrator(s) shall have no authority to award punitive or other
damages not measured by the prevailing Party's actual damages, except as may be required
by statute. The arbitrator(s) shall not award incidental or consequential damages in any
arbitration initiated under this Section.
3. Other. To the maximum extent practicable, the AAA, the arbitrators and the Parties
shall take all action required to conclude any arbitration proceeding within 180 days of the
filing of the Dispute with the AAA, No arbitrator or other Party to an arbitration proceeding
may disclose the existence, content or results thereof, except for disclosures of infonnation
by a Party required in the ordinary course of its business, by applicable law or regulation, or
.J;nnfiilepliaL.
Corporate Guarantee Master Contract Bridger Coal- final.doc
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16.
17.
18.
to the extent necessary to exercise any judicial review rights set forth herein. This arbitration
provision shall survive termination, cancellation, expiration or amendment of the Agreement
or any other relationship between the Parties.
Governing Law. The laws of the State of California, without regard to conflicts of law
principles, shall govern the execution, interpretation and performance of this Agreement.
Joint Document. This Agreement has been, and shall be construed to have been, drafted
by Employer and Wells Fargo Home Equity.
Counterparts. This Agreement may be executed in any number of counterparts, each of
which shall be an original; however, all such counterparts shall together constitute one
and the same instrument.
19.Waiver. Failure of any Party to insist, in anyone or more instances, on strict
performance of any provisions of this Agreement, or to exercise any right, remedy or
option herein contained, or to serve any notice, or to institute any action or proceeding,
shall not be construed as a waiver or relinquishment for the future of any such provisions
rights, remedies or options, and no waiver of any provision of this Agreement shall be
deemed effective unless made in writing and signed by the Parties hereto.
20.Severability. Wherever possible, any provision of this Agreement shall be interpreted in
such manner as to be effective and valid under Governing Law, but if any provision of
this Agreement shall be prohibited by or invalid under Governing Law, such provision
shall be ineffective to the extent of such prohibition or invalidity, without invalidating the
remainder of such provision or the remaining provisions of this Agreement.
IN WIlNESS WHEREOF, this Agreement has been executed as of the day and year first
above written.
Wells Fargo Bank, National Association Pacific Minerals, Inc. on behalf of Bridger
Coal comp~ny
By: ~ ~/L-By:
Name:Name: Neil L. Getzelman
Title:Title: President, Pacific Minerals, Inc.
and member of Bridger Management
Committee
COli Fidehtilll
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EXHIBIT 4
Relocation Services Agreement between
HomeServices Relocation, LLC and PacifiCorpEnergy
RELOCATION SERVICES AGREEMENT
This Relocation Services Agreement (this "Agreement") is entered into by and between
HOMESERVICES RELOCATION, LLC,a Delaware limited liability company, with an office at
6800 France Avenue South, Suite 355, Minneapolis, MN 55435 (herein referred to as "HSR") and
PacifiCorp Energy a division of PacifiCorp, an Oregon c~rporation (collectively with all its
affiliates, subsidiaries, officers, directors, members, managers, employees, agents, 8ccountants and
attorneys "PacifiCorp ), having an office at P.O. Box 158, Point of Rocks, WY 82942 (herein
referred to as the "Company") and is effective as of the October 22,2007 (the "Effective Date"
In consideration of the covenants contained in this Agreement and for other good and
valuable consideration, the receipt and. sufficiency of which are hereby acknowledged, the
aforementioned parties to this Agreement (the "Parties" or, individually, a "Party") agree as
follows:
Section 1.Term
The term of this Agreement shall' begin on the Effective Date and continue for an initial
period of one year; at the conclusion of the initial one-year period, this Agreement shall renew
automatically for successive a one-year periods. Either party may terminate this agreement at any
time upon 30 days' notice.
Section 2.Definitions
As used in this Agreement, the following words and phrases shall have the following
meanings:
Authorized Representative(s): An individual or individuals the Company designates
in writing as having authority to request that HSR provide services to an Employee
pursuant to the terms of this Agreement.
Comoany: Bridger Coal Company.
(d)
Direct Cos~: Any and all costs, fees or expenses HSR incurs or accrues as agreed to
in advance in writing by the parties in providing services under this Agreement, at
any time, whether during or after the term of this Agreement, including but not
limited to payments made to an Employee as reimbursement for relocation-related
expenses and payments made directly to vendors on behalf of an Employee for
relocation-related services provided by the vendor.
Employee: Any person the Company designates as being eligible to receive services
from HSR pursuant to this Agreement, including any other person residing in the
same household and any other person in title to a property involved in the
Employee s relocation, sucti as a spouse.
Initiation: HSR's receipt, of the Company s notification, pursuant to Section 4
below, that HSR is to provide services to an Employee.
~da1 PagelMalta' Relocation Services ~t 1~7 JB Plant FINAL-doc
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Section 3.
Service Fees:The fees HSR charges the Company for the services described in
Section 3 below.
Services Provided
At the Company s request, HSR shall provide services for Company s designated
Employees as set forth in Exhibit A.which is attached hereto and incorporated herein by reference.
Section 4.Company s Request for Services
When the Company desires HSR to make available to an Employee any of the services
described in this Agreement, an Autho~ed Representative shall notify HSR in writing or
electronically of the Employees eligibility to participate in the benefit program and of the services
available to such Employee.
Section S.Service Fees and Other Charges.
The Company shall pay to HSR the following service fees and other charges in accordance
with the billing schedule set forth in Section 6 of this A2l'eement:
Service Fees: The fee for the services described in Section 3 of this Agreement is a
one time fee of $500 for eadh Employee.
Section 6.
Direct Costs: The Company shall pay to HSR Direct Costs as described in
Section 2( c)this Agreement.
Billing and Payment Procedures
AIl billing will be sent to the Conwany as set forth in Exhibit B which is attached hereto
and incorporated herein by reference.
(IJ.)Monthly Billing.HSR shall bill the Company for all Service Fees due based on
Initiations made by Company in the prior calendar month.
Exoense Billing. After each Initiation, HSR shall bill the Company for Direct Costs
associated with services provided to each Employee as referenced in Exhibit B.
(c)Final Bill. After services';provided to an Employee are completed or otherwise
terminAted.HSR may issue a final bill for any remaining costs or expenses due for
paYment or to make any necessary adjustments or credits for amounts previously
billed and/or paid.
Payment Due: Late CharlZes.All HSR bills shall be due and payable within thirty
(30) days from the invoice date. If HSR has not received payment within forty-five
(45) days of the invoice date, it shall assess a late charge of one percent (1%) for
each thirty (30) day period thereafter, until the invoice has been paid in full. If a
(d)
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dispute arises with respect to a portion of any invoice, the undisputed portion shall
be due and payable in accordance with the above stipulated billing terms.
Section 7.Accounting and Audit
HSR shall keep adequate records and books of account with respect to the transactions to be
performed pursuant to this Agreement, With complete entries" made in accordance with generally
accepted accounting principles. Such reoords and books of account shall be made available at
reasonable times and upon reasonable advance written notice for examination and auditing by the
Company or its representatives, during the term of this Agreement, and for six (6) months
subsequent to termination by either Party. Notwithstanding the foregoing, HSR shall continue to
maintain such records regarding each Employee for two (2) years after the services for such
Employee are completed.
Section 8.Survival
Sections 5, , 7, 9, and 10 hereof shall survive termination.
Section 9.Indemnification
The Company agrees to indemnify and hold HSR, its officers, directors, employees,
representatives, agents and, affiliates hannless from and against any and all claims,
liabilities, losses, damages, expenses, costs and lawsuits (including reasonable
attorneys' fees) incurred or suffered by HSR, its officers, directors, employees,
representatives, agents and affiliates (i) arising out of or in connection with any
action or failure to act by a'ny Employee or any other person to whom services are
provided pursuant to the tenns of this Agreement, including, but not limited to fraud,
deceit, misrepresentation, negligent acts or omissions by the Employee or such other
person and failure or inability of the Employee or such other person to fulfill any
contractual obligations; (ii) arising out of or in connection with any negligence or
willful misconduct of the Company, its officers, directors, employees or Authorized
Representative(s); (iii) as a result ofHSR following any instroction given properly
given by the Company or Authorized Representative(s) in accordance with the tennsof this Agreement; (iv) .the breach by the Company or any Authorized
Representative of any proVision of this Agreement. The right to indemnification
provided for herein shall survive termination of this Agreement. Upon performance
of its aforesaid obligation to indemnify HSR, the Company shall be subrogated to
any rights of HSR against the Employee or any other person.
HSR agrees to indemnify and hold the Company, its officers, directors, employees,
representatives, agents and affiliates harmless from and against any and all claims,
liabilities, losses, damageS, expenses, costs and lawsuits (including reasonable
attorneys fees) incurred or suffered by the Company, its officers, directors,
employees, representatives, agents and affiliates (i) as a result of any breach by HSR
of any provision of this Agreement; or (ii) arising out of or in connection with the
negligence or wi11fu1 misconduct of HSR, its officers, directors, employees or
agents. The right to indemnification provided for herein shall survive termination of
Confid.1iU-Pqo 3Muter Relocation Services ~t 1().8.()7 .JB Plant FINALdoc 1 0I9l2OO7
Section 10.
this Agreement. Upon pCrronnance of aforesaid obligation to indemnify the
Company. HSR shall be subrogated to the Company s rights against any other
person.
Arbitration
Arbitration: If disputes between the Parties arise with respect to the terms and
conditions of this Agreement. such disputes shall be resolved by and through an
arbitration proceeding to ; be conducted under the auspices of the American
Arbitration Association (or any like organization successor thereto) in Rock Springs.
Wyoming. Such arbitration proceeding shall be conducted in as expedited a manner
as is then pennitted by. the American Arbitration Association s commercial
arbitration rules (fonnal or infonnal), and the arbitrator or arbitrators in any such
arbitration (an "Arbitration ') shall be persons who are knowledgeable in the subject
matter of the dispute. No demand for arbitration may be made after the date when
the institution of legal or.equitable proceedings based on such claim or dispute
would be barred by the IiiPplicable statute of limitations. Both the foregoing
agreement of the Parties to arbitrate any and all such claims, and the results,determinations, findings, judgments and/or awards rendered through such
Arbitration, shall be final and binding on the Parties and may be specificallyenforced by legal proceedings.
Procedure:Any arbitration shall be conducted before a panel of arbitrators selected
in accordance with the rules of the American Arbitration Association. Each Party
shall bear separately the cost of their respective attorneys, witnesses and experts in
connection with such arbitr,ation. Time is of the essence regarding this arbitration
procedure. and the arbitrators shall be instructed and required to render their
decision within 10 days following completion of the Arbitration.
(c)Fees:The Parties also agree that all awards, decisions and remedies in favor of a
winning Party hereunder with respect to any issue shall be proportional to theviolation caused by the losing Party with respect to that issue. All costs in
conducting the Arbitration. including the Arbitration filing fee, the arbitrator's feesand expenses, and the p(evailing Party's reasonable legal fees and expenses
(including legal fees and cOsts the prevailing Party incurs in seeking or resisting
temporary or provisional court relief as set forth in Section 10( d)below), shall be the
losing Party's responsibilitY as directed by the arbitrator. If there are multiple issues
in dispute and no Party prevails on tbemall, costs and legal fees shall be apportioned
by the arbitrator according to the relative dollar value of each issue. The arbitrator'saward shall be final and binding. If either Party must resort to the judicial process to
enforce the provisions of this Agreement, the award of an arbitrator or equitablerelief granted by an arbitrator. the Party seeking enforcement shall be entitled to
recover from the other Party all costs of litigation including reasonable attorneys
fees and court costs.
(d)Injunctive Relief:The Parties agree and acknowledge that money damages may not
be an adequate remedy for any breach of this Agreement's provisions and that any
.clltlfid8R8e1 PaF 4Master Relocation Services Asrcemmt IO-U? JB PlautFINALdoc 101912007
Section 11.
Party may, in its sole discretion, apply for and.secure specific performance and/or
injunctive relief, without bond, pending final resolution on the merits in order to
enforce or prevent any violations of this Agreement's provisions.
General Provisions
(b)
Attornevs' Fees In the event of any litigation between the Parties to this
Agreement, the prevailing 'Party shall be entitled to immediate payment of all costs
it incurred in the dispute, including, but not limited to, court or arbitration costs and
reasonable attorneys' fees.
Govemin2 Law. This Agreement shall be construed and enforced in accordance
with, and governed by, the laws of the State of Wyoming.
(c)Asshmment. Neither Party may assign this Agreement without the other Party'
prior written consent, which consent shall not be unreasonably withheld, except that
each Party may assign its interest to an affiliated or successor entity upon prior
written notice to the other Party. If an assignment is permitted, the assigning Party
shall remain liable for all 'of its duties and obligations hereunder. Any purportedassignment in violation of the provisions hereof shall be void and of no effect. The
terms, covenants, conditionS and provisions of this Agreement shall be binding upon
and inure to the benefit of the Parties' successors.
No Third party Beneficiaries. No Employee or other person, or entity, except for the
Company and HSR sha11luive any enforceable rights under this Agreement.
No Waiver. Either Party's failure to insist, in anyone or more instances, on strict
performance of any of the provisions or terms of this Agreement shall not be
construed as a waiver or relinquishment of any such provision or term, but the same
shall continue and remain in full force and effect.
(I)Entire Agreement.This Agreement, together with the exhibits annexed hereto,
contains the Parties' entire. agreement with respect to the subject matter hereof and
supersedes any prior oral ~r written understandings between the Parties regarding
the same.
No Oral Modification. This Agreement may not be tenninated, modified, altered or
amended orally. Any such termination, modification, alteration or amendment shall
be in writing, duly execute4 by both Parties.
Severability. If any provision in this Agreement shall be detennined to be invalid,
illegal or unenforceable in :any respect, the remaining provisions of this Agreement
shall not be impaired in any way, and the illegal, invalid or unenforceable provision
shall be fully severed wm ~s Agreement, and there shall be automatically added a
replacement provision as similar in terms and intent to such severed provision as
may be legal, valid and enforceable.
-Cellfid."el Page Muter Relocation Servic:a Agreement 10-8'()7 JB Plant FINAI:-doc
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(j)
Cautions The captions . and headings in this Agreement are included for
convenience of reference OIily and shall not be interpreted to affect the substance of
the provisions of this Agreement.
Notices. All notices given by either Party to the other shall be in writing and shall
be given personally or sent by certified mail, postage prepaid, return receipt
requested, to the Parties . respective addresses set forth at the head of this
Agreement. Any Party m~y change the address to which notices are to be sent by
giving notice to the other in the manner provided above. Notices shall be deemed
given upon receipt or three (3) days after mailing as aforesaid, whichever is earlier.
(i)
(Ie)Equal Oooortunitv: Non-Discrimination.HSR is an equal opportunity employer and
HSR shall sell, list and otherwise deal with all properties in full compliance with all
laws prohibiting discrimination on the basis of age, race, religion, sex, handicap,
familial status, color, natioIial origin or marital status.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed by
their duly authorized respective officers.
HOME SERVICES RELOCATION, LLC
BY:BY:
PACIFICORPENERGY
"')..
~t~~96'BOB
MANAGING DIRECTOR
(Name)
TITLE:TITLE :
DATE:(7/6/DATE:
..e....fidc:nDaI Pqe 6Master Relocatioo SeMc:ea Aareement 1~7 18 Plant FIN~doc I 01912007
EXHIBIT A
~9I1fid-rial P8F 7Master Relocation Services Agreement 10-8-07 m Plant FIN~doc 10N2007
EXHIBIT 5
Master Subsidy Agreement between
HomeServices Lending and PacifiCorp Energy
MASTER $UBSIDY AGREEMENT
THIS MASTER SUBSIDY AGREEMENT ("Agreement") is made effective as of October 22,
2007, by and between HomeServices Lending ("HSL "), having an office at One Home
Campus, Des Moines, Iowa 50328-0001 and PacifiCorp Energy a division of PacifiCorp, an
Oregon corporation (collectively with all its affiliates, 'subsidiaries, officers, directors,
members, managers, employees, agents, accountants and attorneys "PacifiCorp ), having
an office at P.O. Box 158, Point of Rocks, WY 82942.
REC IT ALS:
HomeServices Lending ("HSL It) makes residential mortgage loans ("Mortgage Loans
available to relocating employees of corporate clients through HSL's relocation mortgage
program; and
Company desires to participate in the program and make its subsidy plan available to its
eligible employees obtaining a Mortgage Loan with HSL: and
The parties wish to enter into an agreement to set forth the terms and conditions for billing,
payment and application of subsidy 'funds for Mortgage Loans originated by HSL for
Company's relocating employees.
NOW THEREFORE, Company and HSL agree as provided below. Any terms not herein
defined are defined as specified in the attached Exhibit A.
AUTHORIZATION AN~BLlGA TIONS
The Company, or its authorized agent,will inform HSL in writing or via email of the name of
each employee who is authorized to receive a closing cost and/or subsidy contribution from
the Company ("Authorized Employee ), together with any terms and conditions of the
contribution. Such written or email authorization will be sufficient to establish the Company's
obligation to reimburse HSL for such costs and charges in accordance with this Agreement.
Each Authorized Employee will be required to sign an individual subsidy agreement
Individual Subsidy Agreement") in a form substantially similar to that in Exhibit A, which is
attached to this Agreement and incorporated by reference, the terms to which Company
agrees. Company shall pay to HSL the total Subsidy Funds required by the Plan as specified
for each Authorized Employee in hislher Individual Subsidy Agreement
2. BILLING AND PAYMENT OF SUBSIDY
(a) Initial Billina. The total amount of the Subsidy Funds payable during the Initial
Period will be billed to the Company or, if instructed by Company, Company's
authorized agent by HSL after.the dosing of each Authorized Employee s Mortgage
Loan at an address agreed to by the parties. The Company agrees to pay HSL the
full amount of the invoice within thirty (30) days of the invoice date.
Confid8nt181 Page 1
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(b) Annual Billing. On or about December 1 of each year the Individual Subsidy
Agreements remain in effect,; HSL shall bill the Company or, if instructed
Company, Company's authorized agent for the total amount of Subsidy Funds due
and payable by the Company with respect to the following calendar year. The
payment due date for these annual invoices will be on or about January 1 of the
following year.
(c) Late Charae. The Company ~II be required to Pay a late charge accruing at the
rate of 12% per annum on all amounts not received by HSL within thirty (30) days of
any invoice date, commencing on the thirty-first (31st) day.
3, APPLICATION OF SUBSIDY FUNDS
(a) Generally Provided HSL has received from the Company sufficient Subsidy
Funds, HSL shall, upon receipt of the Mortgagor Monthly Payment Amount, apply
the Monthly Assistance Payme~t to the payment due under each Mortgage Note.
(b) In the event of default or foreclosure.No Subsidy Funds shall be applied to (i)
satisfy any past due payments owed by any Authorized Employee, (ii) cure any
delinquency or default under the terms of any Mortgage Note and/or Mortgage, or
(m) reinstate any Mortgage Loan. Upon the occurrence of any default, HSL will be
entitled to exercise any and all rights to which it is entitled under the terms of the
respective Mortgage Note and/or Mortgage. The Subsidy Funds are not a
prepayment of interest nor a , partial satisfaction of any Authorized Employee
obligation under his or her Mortgage Note. If the property securing any Mortgage
Note and/or Mortgage is sold pursuant to a non-judicial or judicial foreclosure
proceeding, the Monthly Assistance Payments provided by Company for the
remaining term of the applicable subsidy period shall not be applied toward any
sums due from the respective Authorized Employee. In the event of
commencement of foreclosure proceedings or the acceptance of a deed in lieu of
foreclosure, the respective' Individual Subsidy Agreement will terminate in
accordance with paragraph 5 pelow and any remaining unapplied Subsidy Funds
will be paid to Company in accordance with said paragraph of this Agreement.
4. INTEREST IN SUBSIDY FUNDS
The parties acknowledge that the purpose of the Subsidy Funds is solely for the use by HSL
to apply as Monthly Assistance Payments toward payment of the amount of principal and
interest due for the scheduled monthly payments under the terms of the Mortgage Note(s).
Except as provided in paragraphs 3(b) and 5(c) herein, the Company relinquishes any right,
title or interest in the Subsidy Funds. ~o Subsidy Funds shall be pledged or otherwise set
aside for the benefit of any Authorized Employee or Company or their successors, except as
otherwise provided in this Agreement.
-Coofid8ntiet-Page 2
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5. TERMINATION OF SUBSIDY
(a) Prior to exciration of subsidY. cariod. Each Individual Subsidy Agreement shall
terminate, and no further Subsidy Funds for the respective Authorized Employee
shall be applied, upon (i) rece!pt by HSL from the Company of written notice of the
death, retirement, resignation or termination of employment of said AuthorizedEmployee (or any other event which results in the Authorized Employee no long~r .
performing substantial services as an employee of the Company), (ii) the fullprepayment of the Mortgage Loan by the Authorized Employee, (Hi) the sale transfer by the Authorized Employee of the property securing the Mortgage Loan as
a result of which HSL is entiUed to accelerate the Mortgage Loan pursuant to thedue-on-sale" clause contained in the Mortgage, or (iv) the commencement offoreclosure proceedings or the acceptance of a deed in lieu of foreclosure. Anysuch notice of termination by ~mpany will be effective as of the first day of themonth after notice is given, 'provided that the notice of termination has been
received by HSL in writing no less than fifteen (15) days prior to the first day of the
month. In addition, in the event HSL does not receive the Subsidy Funds asprovided under the terms of this Agreement, HSL has the option to terminate the
affected Individual Subsidy Agreement and this Agreement (as applicable) forbreach effective immediately upon notice from HSL to Company and the affectedAuthorized Employee(s).
(b) Exciration of subsidy cariod . 1f not earlier terminated pursuant to paragraph 5(a)herein, the Authorized Employee s benefits under his or her Individual SubsidyAgreement(s) shall automati~lIy terminate as of the effective date of terminationspecified in the Individual Subsidy Agreement, and no additional Subsidy Funds for
that Authorized Employee shall be applied subsequent to such date.
(c) Payment obliaations uoon termination of su~Upon termination of theIndividual Subsidy Agreement
, ;
beginning with the first monthly payment of principal
and interest due after the termination of said agreement and continuing for theremainder of the term of the respective Mortgage Loan, the Authorized Employee
shall pay the entire monthly installment of principal and interest, as provided in his
or her Mortgage Note. After termination of each Individual Subsidy AgreementCompany shall still be responsible for paying any unpaid Subsidy Funds and late
charges due and owing to HSL during the term of said agreement. Similarly, HSLshall, within sixty (60) days of the effective date of termination, be responsible forpaying to Company any remaining Subsidy Funds received but unapplied under the
terms of the respective Indivi~ual Subsidy Agreement, as of the effective date
termination.
6. PAYMENT LIABILITY UNDER THE MORTGAGE NOTE
During the full term of each Mortgage Note, including the subsidy period, each MortgageLoan will amortize at its Mortgage Note interest rate. Each Authorized Employee will remain
primarily liable for payment of the full monthly payment of principal and interest as providedin the Authorized Employee s Mortgage Note, and for all other obligations of the Authorized
-eullfldbllti~1 Page 3HSLPaclflCorp Energy MaaI8r Subsidy Agreement FINAL-doc 101912007
Employee as provided in his or her Mortgage Note and Mortgage, notwithstanding the
Company's obligations under this Agreement. The Company is not a borrower, co-signer or
obligor on the Authorized Employee Mortgage Note and has no obligation to repay any
portion of the amounts due under the Mortgage Note.
INDEMNIFICATION
The Company agrees to indemnify HSL, its. officers, directors, agents a(1d
employees, and any other person or entity who acquires any interest in any
Authorized Employee Mortgage Loan, and defend and hold them harmless against
any liability or loss resulting, from (i) any failure by the Company, its officers,
directors, agents and employees to comply with any and all applicable federal, state
and local income tax laws and regulations in connection with this Agreement or the
Plan; and (ii) any claim of any Authorized Employee arising out of the Plan, this
Agreement or out of the Company's termination of this Agreement or the Plan
except to the extent such claim arises from the acts or omissions of HSL, its officer,
directors, agents and employees.
HSL agrees to indemnify the Company, its officers, directors, agents andemployees, and defend and . hold them harmless against any liability or loss
resulting from (i) any failure by HSL to comply with any and all applicable federal,state and local laws and regulations in connection with this Agreement or the Plan;
and (ii) any claim of any Authorized Employee arising out of the Plan, thisAgreement or out of the Company's termination of this Agreement or the Plan, to
the extent such claim arises from the acts or omissions of HSL, its officer, directors,
agents and employees.
With respect to the provisions, of Section 13 of this Agreement, each party shallindemnify, defend and hold h~rmless the other parties against any and all losses,
damages, claims, expenses and attorneys' fees incurred or suffered by the other
parties as a result of a breach of Section 13 of this Agreement by the indemnifying
party or any of its representatives, including without limitation the cost of notifyingany customer or consumer of any unauthorized access to Nonpublic Personal
Information (as defined below).
TERMINATION OF AGREEMENT
In addition to termination as provided in paragraph 5(a) herein, this Agreement may beterminated by either HSL or the Company upon ninety (90) days prior written notice to the
other party, but no termination of this 'Agreement shall affect the rights of the parties withrespect to (a) Mortgage Loans held by HSL, its successors or assigns, including but notlimited to any subsidy Mortgage Loan, originated by HSL under the terms of any Authorized
Employee s Individual Subsidy Agreement, or (b) Mortgage Loans committed to be made by
HSL but unfunded as of the date of termination. Termination of this Agreement does not
terminate any Authorized Employee s :Individual Subsidy Agreement or any obligation byCompany as it relates to any such individual subsidy agreement, including but not limited to
Company's Subsidy Fund payment obligation.
Csflfidolltiat'Page 4HSLPaclflCorp Energy Master Subsidy Agreement FINA4.doc
101912007
"..
9. NOTICES
Except as to communications under paragraphs 1 and 2, all notices, demands and other
communications under this Agreement shall be in writing and shall be deemed to have been
duly given if delivered in person, by reputable express mail carrier, or by United States mail,
certified or registered with return receipt requested to the addressees) as follows:
If to Company:Jim Bridger Plant
PO Box 158
Point of Rocks, WY 82942
Attn: Bob Arambel
If to HSL:HomeServices Lending
333 South 71t! Street, 271t! Floor
Minneapolis, MN 55402
Attn: General Counsel
with a copy to:Wells Fargo Home Mortgage
One Home Campus
MAC X2406-011
Des Moines, Iowa 50328-0001
Attn: General Counsel
The persons and addresses to whom mailings or deliveries shall be made may change by
notice to the other party.
10. SUCCESSORS AND ASSIGNS
All terms and provisions of this Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective transferees, successors and assigns.
11. GOVERNING LAW
This Agreement shall be construed and enforced in accordance with the laws of the State of
Iowa.
12. ENTIRE AGREEMENT
This Agreement embodies the entire understanding of the parties and there are no further or
other agreements or understandings, written or oral, in effect between the parties relating to
the subject matter hereof. This instrument may only be amended or modified by writteninstrument signed by both parties or th~ir duly authorized agents.
C6l'1fidential Page 5HSLPaclflCorp Energy Master Subsidy Agreement FINAL-doc 10/912007
13. CONFIDENTIALITY
(a)Confidential Information,
(1) "Confidentiallnformationn rT:Ieans
any information that is transmitted or otherwise
provided by or on behalf of one party (the "Discloser") to any other party (theRecipient") to this Agreement hi connection with, or as a result of, this Agreement
and which should reasonably be, understood by the 'Recipient to be proprietary and/or
confidential to the Discloser.
(2) Confidential Information also includes (a) "nonpublic personal information" aboutcustomers" and "consumers" (as those terms are defined in Title V of the Gramm-Leach-Bliley Act and its related ,privacy regulations), and (b) any information subjectto Section 628 of the Fair Credit Reporting Act and any related regulations orguidelines (collectively referred to in this Agreement as "Nonpublic Personal
Information ). Title V of the Gramm-Leach-Bliley Act, Section 628 of the Fair Credit
Reporting Act, and any related regulations or guidelines, are collectively referred to in
this Agreement as the "Privacy Regulation.
(3) Confidential Information does not include information that (i) is in the publicdomain as demonstrated by written or other tangible evidence or enters into the
public domain through no wrongful act or breach of any obligation of confidentiality byRecipient; (ii) was in the knowledge and possession of Recipient free of anyconfidentiality obligation, or was independently developed by Recipient prior to the
time it was disclosed to Recipient by Discloser, (iii) is at any time rightfully received bythe Recipient from a third party who has an independent right to such information; or(iv) is identified by Discloser as no longer confidential or is approved in writing forrelease by the Discloser prior to such release.
(b)Protection of Confidential Jnformation
(1) Recipient acknowledges that Confidential Information has been developed orobtained by Discloser by the investment of significant time, effort and expense, and
that Confidential Information is a valuable, special and unique asset of Discloser,which provides Discloser a significant competitive advantage. Therefore, Recipient
agrees to hold in confidence and to not disclose Confidential Information to anyperson or entity, except as expressly authorized in this Agreement or otherwise with
the express prior written consentof Discloser.
(2) Recipient agrees (i) to use Confidential Information solely for the purpose ofcarrying out the transactions undertaken in the context of such business relationship;(ii) to not, directly or indirectly, otherwise use any Confidential Information forRecipient's own benefit or on its own behalf or for the benefit or on behalf of othersfor any other purpose; (iii) to use the same degree of care to maintain the security of
Confidential Information as Recipient uses to protect its own confidential and
proprietary information (which shall be a degree of care not less than may be requiredby applicable law, if any. or otherwise as followed in the industry); (iv) to safely andsecurely dispose of all Confidential Information, and (v) to disclose Confidential
~eAfiEleRtiar Page 6HSLPacifiCorp Energy Master Subsidy Agreement FINALdoc 101912007
(c)
(d)
Information to Recipienfs RepreSentatives under confidentiality obligations consistent
with this Agreement and only on a need-to-know basis for performance of such
Representative s duties in connection with an authorized use of the ConfidentialInformation.
Special Provisions for Use of Nonpublic Personal Information.
(1) Each Recipient represents and warrants to the Discloser with respect to ~ny
Nonpublic Personal Information disclosed to it: (i) Recipient controls access to thenetwork (information system) 01:1 which any such Nonpublic Personal Information isstored, through the compliance with and utilization of its information securitymeasures which restrict access; and (ii) Recipient shall comply with its informationsecurity measures.
(2) Each Recipient covenants to the other parties that with respect to NonpublicPersonal Information Disclosed to the Recipient under this Agreement, the Recipient
will (i) comply with the terms and provisions of the Privacy Regulation, including the
provisions regarding the sharing,of Nonpublic Personal Information; (ii) not disclose or
use any Nonpublic Personal I nformation that it receives from a Discloser except tocarry out the purposes for which: such Nonpublic Personal Information was provided,
or as otherwise permitted by the Privacy Regulation and other applicable laws; (iii)
comply with its information security standards; (iv) property and securely dispose ofall Nonpublic Personal Information; (v) not make any changes to its securitymeasures that would increase the risk of an unauthorized access; and (vi) notdisclose any Nonpublic Personal Information disclosed to it to any other entity, except
as follows: (A) to Discloser's affiliates, with the prior consent of Discloser, (B) to itsown affiliates, provided, that its affiliates may, in tum, disclose and use the
information only to the extent' that Recipient may disclose itself and use theinformation; and (C) to a nonaffiliated third party, in the ordinary course of business
in order to carry out the activity for which the information was disclosed to Recipientpursuant to one of the exceptions to the Privacy Regulation. Recipient agrees to
promptly notify any customer whose Nonpublic Personal Information is accessed by
any unauthorized person while in the custody of Recipient or any of its affiliates orsubcontractors. Provided, that with respect to any consumer who becomes a
customer of HSL, the use of Npnpublic Personal Information of such customer byHSL shall thereafter be governed by HSL's then-current Privacy Policy and allapplicable state and federal law
, '
and not this Agreement.
The parties agree that the Confidential Information disclosed pursuant to this
Agreement are of a special, unique, and extraordinary character, that the Discloserwould be irreparably harmed by any disclosure of the Confidential Information inviolation of this Agreement, and that the use of the Confidential Information for the
business purposes of any party other than in connection with this Agreement or any
third party, would enable su~h party or third party to compete unfairty with the
Discloser. For these reasons, the Recipient agrees that the Discloser shall beentitled to injunctive relief to prevent further use and/or disclosure in addition to all
other remedies available to the Discloser in law or in equity for any breach of this
Agreement.
Gonfidenti81 .Page 7HSLPacifiCorp Energy Master Subsidy Agreement FINAL-doc 10/912007
HOMESERVICES LENDING
(Signature)
(Name)
CfiUe)
C9Rfige~tial Page 8
HSL PacifiCorp Energy Master SUbsidy Agreement FINAl-doc
Bob Arambel
(Name)
Manaeina Director. Jim Bndeer Plant
Cfitle)
101912007
EXHIBIT 6
Employee Home Equity Financing Guaranty Agreement between
Wells Fargo Home Equity and PacifiCorp Energy
Employee Home Equity Financing Guaranty Agreement
Parties. The Parties to this Employee Home Equity Financing Guaranty Agreement
dated October 22. 2007 Agreement"), are PacifiCorp Energy a division of PacifiCoYp~.
an Oregon corporation (collectiv~ly with all its affiliates, subsidiaries, officers, directors,
members, managers, employees, agents, accountants and attorneys "PacifiCoYp
Employer") and Wells Fargo Home Equity a division of Bank, National Association
Wells Fargo Home Equity") (Employer and Wells Fargo Home Equity are individually
and collectively the "Party" and the "Parties" respectively.
Recitals. This Agreement documents the tenns and conditions under which Wells Fargo
Home Equity will offer Employer's Eligible Employees (as designated by Employer in
writing pursuant to Attachment A) home equity financing. As set forth herein, Wells
Fargo Home Equity shall provide' Eligible Employees with a home equity loan secured by
a second or subordinate position lien on the Eligible Employee s residence, the repayment
of which is guaranteed in whole ~y the Employer (the "Loan ). Employer agrees that the
Employer shall purchase the Loan of any Eligible Employee whose employment with
Employer terminAtes for any reason or who has defaulted in hislher obligations under the
Loan and that Employer guarantees all payments to Wells Fargo Home Equity of
principal, interest, costs and expenses for each such Loan.
Agreement. In consideration of the mutual promises in this Agreement and for other
good and valuable consideration;: the receipt and adequacy of which the Parties hereby
acknowledge, Wells Fargo Home- Equity agrees to make Loans to Eligible Employees asdefined in Attachment A to this Agreement, in accordance with the Lending Procedures
set forth in Attachment A to this Agreement ("Lending Procedures ), a copy of which is
attached hereto and incorporated herein by this reference as though set forth in full.
Employer agrees to purchase the Loan of any Eligible Employee in the event that the
Eligible Employee s employment. with Employer terminates for any reason whatsoever or
in the event that the Eligible Employee defaults under the tenns of the Loan documents,
including but not limited to the ioan agreement, the mortgage, or the deed (the "Loan
Documents"Furthermore, the Employer agrees to guaranty all payments of principaland interest, as well as the reasonable costs and expenses incurred by Wells Fargo Home
Equity, if any, in connection with each Loan.
Purchue of Loan. In the event Eligible Employee s employment has terminated,
Employer shall promptly notifY Wells Fargo Home Equity in writing and Employer is
obligated to purchase the Loan. Within ten (10) days of its receipt of such notification,
Wells Fargo Home Equity shall nptifY Employer in writing of the purchase price for such
Loan. In the event that the Eligible Employee has defaulted in hislher obligations under
the Loan Documents, Wells Fargo Home Equity shall notify the Employer in writing of
the default and the amount of the purchase price for such Loan. The purchase price shall
equal the unpaid principal balanCe of such Loan plus all accrued and unpaid interest,
~oh..lt:bd Pqe 1
Arp Guarlntee MasIcr Conlract Jim Bridser Pl8Dt- finallo-a.o7.doc
10I9l2OO7
unpaid closing costs. as well as costs. and expenses. if any. thereon up to the date that
Wells Fargo Home Equity sells, transfers and assigns the Loan to Employer. Employer
shall remit payment for any purchased Loan to Wells Fargo Home Equity by wire or
Employer s check within thirty (30) days of receipt of notification by Wells Fargo Home
Equity of the purchase price ofth~ Loan..
Employer Guaranty. To induce Wells Fargo Home Equity to make Loans to Eligible
Employees. Employer absolutely and unconditionally guaranties to Wells Fargo Home
Equity the full and prompt payment when due of each and every Loan, including all
monthly and annual payments of interest or principal and interest, payments due at
maturity. payments due upon acceleration of the Loan, payments due in the event
Employer purchases a Loan, and closing costs for each Loan including. but not limited to.
title insurance. homeowner s insurance. flood insurance (if required). recording fees,
origination fees. commitment f~. and any state or local taxes and any other costs or
expenses incurred in connection with the collateral property or Eligible Employee
default, if any. Employer understands that this guaranty is irrevocable; that this guaranty
is one of payment and not collection, which means Wells Fargo Home Equity can insist
that Employer pay it immediately; that Wells Fargo Home Equity is not required to
attempt to collect from an Eligible Employee; and that if any moneys become available to
apply to a Loan, Wells Fargo Home Equity shall apply them in accordance with the tenDS
of the written Loan agreement between Wells Fargo Home Equity and such Eligible
Employee. Employer understands and agrees that Wells Fargo Home Equity has
information or may obtain information regarding the Eligible Employee that is protected
by law from disclosure to Employer. Furthermore. Employer agrees that Wells Fargo
Home Equity is not required to exercise any rights that it has against an Eligible
Employee or the collateral property in order for Wells Fargo Home Equity to exercise its
rights under this Agreement.
If Employer is a corporation, Employer represents and warrants that it expects to derivesubstantial benefits from the Eligible Employee and from any Loans, and that this
guaranty is given for a corporate purpose. So long as this guaranty remains in effect,
Wells Fargo Home Equity may rely conclusively on a continuing warranty. hereby made.
that Employer continues to be benefited by this guaranty and Wells Fargo Home Equity
shall have no duty to inquire into or confirm the receipt of any such benefits. and this
guaranty shall be effective and enforceable by Wells Fargo Home Equity without regard
to the receipt, nature or value of any such benefits.
It is the intent of Employer and Wells Fargo Home Equity that Employer s obligations
and liabilities under this Section ' shall be absolute and unconditional under any and all
circumstances. Employer waives (a) any and all requirements that Wells Fargo Home
Equity institute any actions or proceedings or exhaust any or all Wells Fargo Home
Equity's rights or remedies against any Eligible Employee or any other person as acondition precedent to requesting payment from Employer under this Guaranty, and (b)
any defense arising by reason o(any disability. insolvency. lack of capacity or authority,
death or any other defense of any'Eligible Employee. it being agreed that Employer shall
r_ftl!_,;.1 PIp 2 10I9l2OO7
4'p GlmDree Muter CoftV8Ct Jim Sri. Pl8nt- fiDall o.8-O7.doc
remain liable hereunder, regardless of whether Eligible Employee or any other person is
not liable under the Loan Agreement for any reason.
Expenses. Wells Fargo Home :&tuity shall bear the expense of preparing. delivering and
mailing all Loan Documents, fanus, statements and notices, including adverse action
notices, required by law to be delivered to Eligible Employees. Each .,Party to thi~
Agreement shall otherwise pay its own costs and expenses (including attorneys' fees)
incurred with the preparation, negotiation, and administration of this Agreement.
Nothing in this Section 6 shall be construed to limit or qualify Employer s obligations to
reimburse and indemnitY Wells Fargo Home Equity in connection with certain expenses
incurred by Wells Fargo Home Equity, as more fully provided in this Agreement.
Representations and Warranties of Employer.
warrants to Wells Fargo Home Equity that:
Employer represents and
Employer is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction in which it has been
incorporated and has the corporate power and authority necessary to own
its assets, carry on; its business and enter into and perform its obligations
hereunder.
The execution, delivery and performance of this Agreement are within
Employer s power and authority, have been duly authorized by all
necessary corporate action, and do not contravene (i) Employer s articles
of incorporation or by-laws, (ii) any law, rule, regulation, order, writ,
judgment, injunction, decree, determination or award, or (Hi) any
contractual restriction binding on or affecting Employer or its assets.
(3)No authorization or approval or other action by, and no notice to or filing
with, any governmental authority or regulatory body is required for the due
execution, delivery or performance by Employer of this Agreement.
(4)The Agreement is, or when executed and delivered by Employer will be,
the legal, valid an~ binding obligation of Employer enforceable against
Employer in accordance with its terms.
Representations and Warranties of Wells Fargo Home Equity. Wells Fargo
Home Equity represents and warrants to Employer that:
(1)Wells Fargo Home Equity (i) is a national banking association, validly
existing and in good standing under the laws of the United States
America, and (ii) has the power and authority necessary to own its assets,
carry on its busin~ and enter into and perform its obligations hereunder.
a....ndCndll1 'Pqe 3
Corp Gu8r8ntce Muter CooIJ8Ct Jim Brid8er Plant- ftna1 I G-8;47.doc
10I9l2OO7
(2)The execution, delivery and perfonnance of this Agreement are within
Wells Fargo Home Equity's power and authority, have been duly
authorized by all necessary action, and do not contravene (i) Wells Fargo
Home Equity's charter or by-laws, (ii) any law, rule, regulation, order,
writ, judgment, injunction, decree, determination or award, or (ill) any
contractual restriction binding on or affecting Wells Fargo Home Equity or,
its assets.
No authorization or approval or other action by, and no notice to or filing
with, any governmental authority or regulatory body is required for the due
execution, delivery or performance by Wells Fargo Home Equity of this
Agreement.
The Agreement is, or when executed and delivered by Wells Fargo Home
Equity will be, the legal, valid and binding obligation of Wells Fargo
Home Equity enforceable against Wells Fargo Home Equity in accordance
with its terms.
Credit Qualification on Loans. Employer understands that its obligations and
responsibilities hereunder apply regardless of whether Wells Fargo performs a credit
qualification of the Eligible Employee and the Eligible Employee s residence and/or
requires that the Eligible Employee and the Eligible Employee s residence meet Wells
Fargo Home Equity's then current credit underwriting standards. In its sole discretion
Wells Fargo Home Equity may agree to make Loans available to Eligible Employees
based on the Employer's guarantY and agreement hereunder; however, it is Wells Fargo
Home Equity's intent to require each Eligible Employee and the Eligible Employee
residence to meet Wells Fargo Home Equity's then current credit underwriting standards.
Nevertheless, whether Wells Fargo Home Equity requires or does not require creditqualification with respect to any Loan(s), the Employer's guaranty and repurchase
obligations as to the Loan(s) shall not be changed, limited or modified in any way.
Employer agrees that Wells Fargo Home Equity has no duty to share with or disclose to,
and in fact, is prohibited by la~, from disclosing any information resulting from any
credit qualification of the Eligible Employee or the Eligible Employee s residence withthe Employer.
ModifiQtion, Renewal or Extension of Loans. In the event that Employer fails to meet
its obligations hereunder, including but not limited to, its timely failure to purchase a
Loan or its timely failure to make the required payments on a Loan, Wells Fargo Home
Equity may modify, renew or amend the Loan, in accordance with applicable law and
prudent commercial and consumer banking standards. Notwithstanding any such
modification, renewal or extens~on, the Loan shall remain subject to the Employer's
guaranty of payment and purchase obligation as described herein.
10. Indemnification. Except as otherwise provided in this Agreement, Employer agrees to
indemnify and hold Wells Fargo Home Equity harmless from and against a1lliability,
€t...ftdt:n-ulll Page 4
ClIp Guanmtee Muser Contr8et Jim Bridger Plant- ftnaIlo.i.o7.doc
I 0I9l2OO7
12.
loss, damage and expense (including the actual and reasonable cost and expense ofenforcing its rights under this Section, if any) actually suffered or inCUlTed by WellsFargo Home Equity in any case where such liability, loss, damage or expense arises fromor relates to any breach by Employer of any representation or warranty made by Employer
hereunder, or the failure by Employer to observe any of its covenants or obligationshereunder. Except as otherwise provided in this A~ement, Wells Farg() Home Equity
agrees to indemnify and hold Employer harmless from and against all liability, loss,damage and expense (including the actual and reasonable cost and expense of enforcing
its rights under this Section, if any), actually suffered or incurred by Employer in any case
where such liability, loss, damage or expense arises from or relates to any breach byWells Fargo Home Equity of any representation or warranty made by Wells Fargo Home
Equity hereunder, or by the fail1,J.I'e by Wells Fargo Home Equity to observe any of its
covenants or obligations hereunder. The Parties' obligations under this Section 10 shallsurvive the termination of this Agteement.
, '
11.Termination. Either Party may terminate this Agreement by giving the other Party
written notice thereof. Such termination shall be effective thirty (30) days after receipt ofsuch written notice, except that any such termination shall not affect the rights and
obligations of the Parties hereunrl:er in respect to any Loans outstanding as of tennination
and any advances to be made thereafter pursuant to the terms of any Loans outstanding,
including the obligations of EmpJpyer under Sections 4 and 5 of this Agreement and theobligations of Employer and Wells Fargo Home Equity under Sections 8 through 10 and15 of this Agreement.
Notices. All notices and other communication by either Party under this Agreement shallbe in writing, and shall be (a) personally delivered, (b) transmitted by telegram, telecopier
or telefacsimile, or (c) mailed via United States registered or certified mail, return receiptrequested, electronic mail, postage prepaid, to the other Party at its address indicatedbelow, or to such other address u such other Party shall specify by notice hereunder. Anotice or other communication to a Party shall be effective the date of delivery to such
address of the Party.
If to Employer:Jim Bridger Plant
PO Box 158
Point of Rocks, WY 82942
Attn: Bob Arambel
If to Wells Fargo Home Equity:Sandra Leyerle
Administrative Assistant
526 Chapel Hills Drive
Colorado Springs, CO 80920
MAC # C7622-01W
Phone: [phone]
€v..lidtll(b/(
:orp Guarantee MuterContrlct Jim Bridser Plant- finallo.8-O7.doc
Page 5 101912007
13.Assignment and Binding Effert This Agreement shall not be assigned or transferred by
either Party without the prior written consent of the other Party. provided, however. Wells
Fargo Home Equity may assign Loans and the right to make Loans from time to time to
its affiliates. and Wells Fargo HOme Equity shall promptly notify Employer of any such
assignment. Any assignment attempted in violation of this Agreement shall be null and
void. This Agreement and the Parties' respective rights and obligations hereunder shall be
binding upon and inure to the benefit of the Parties hereto and their respective successors
and assigns.
14,Entire Agreement. This A~ent and the Attachments hereto constitute a complete
statement of all the arrangements. between the Parties as of the date hereof with respect to
the transactions contemplated ; hereby. and supersede all prior agreements and
understandings between them relating to the subject matter hereof. This Agreement may
be modified, revised or amended only by consent of the Parties as evidenced by a written
agreement duly executed by the Parties hereto.
15.Settlement of Disputes.
A. Binding Arbitration Required. 'Upon the demand of either Party. any Dispute shall be
resolved by binding arbitration in acCordance with the tenDS of this Section 14 except as set
forth in subsection (e) below. A "Dispute" shall mean any action, dispute, claim or
controversy of any kind. whether in contract or tort, statutory or common law. legal or
equitable, now existing or here8ft~ arising under or in connection with, or in any way
pertaining to this Agreement. Any Party may. by summary proceedings. bring an action in
court to compel arbitration of a Dispute. Any Party who fails or refuses to submit to
arbitration following a lawful demand by the other Party shall bear all costs and expenses
incurred by such other Party in compdling arbitration of any Dispute.
B. Arbitration Association and Rules. Arbitration proceedings shall be adm1n1stered by the
American Arbitration Association (" AAA "). or such other administrator as the Parties shall
mutually agree upon. Arbitration' shall be conducted in accordance with the AAA
Commercial Arbitration Rules. If there is any inconsistency between the terms hereof and
any such roles. the tenns and procedures set forth herein shall control. All Disputes
submitted to arbitration shall be reSolved in accordance with the Federal Arbitration Act
(Title 9 of the United States Code): The arbitration shall be conducted at a location in
California selected by the AAA or other administrator. All statutes of limitation applicable to
any Dispute shall apply to any arbitration proceeding. All discovery activities shall be
expressly limited to matters directly t:elevant to the Dispute being arbitrated. Judgment upon
any award rendered in an arbitration may be entered in any court having jurisdiction;
provided however. that nothing contained herein shall be deemed to be a waiver. by any Party
that is a bank, of the protections afforded to it under 12 U.C. ~9l or any similar applicable
state law.
C. Ancillary Remedies. No provision hereof shall limit the right of either Party to obtain
provisional or ancillary remedies, including without limitation injunctive relief. attachment or
the appointment of a receiver. from a court of competent jurisdiction before, after or during
~ Co..fidt.dlll P8g1e6 10.'912007
=orp Guarantee Muu:r Contnet Jim Brid8a' Plant. ftna1 ~7.doc
any arbitration or other proceeding. : The exercise of any such remedy shall not waive the
right of a Party to compel arbitration ~ereunder.
D. Arbitrator & Choice of Law. " Arbitrators must be active members of the California
State Bar or retired judges of the state or federal judiciary of California, with expertise in the
substantive laws applicable to the subject matter of the Dispute. Arbitrators are empow~
to resolve Disputes by summary rUlings in response to motions filed prior to the final
arbitration hearing. Arbitrators (i) shall resolve all Disputes in accordance with the
substantive law of the state of California, (ii) may grant any remedy or relief that a court of
the state of California could order or grant within the scope hereof and such ancillary relief as
is necessary to make effective any award, and (iii) shall have the power to award recovery of
all costs and fees, to impose sanctions and to take such other actions as they deem necessary
to the same extent a judge could pursuant to the Federal Rules of Civil Procedure, the
California Rules of Civil Procedure or other applicable law. Any Dispute in which the
amount in controversy is $5.000,000, or less shall be decided by a single arbitrator who shall
not render an award of greater than $5.000.000 (including damages, costs, fees and
expenses). By submission to a singie arbitrator, each Party expressly waives any right or
claim to recover more than $5,000 000. Any Dispute in which the amount in controvmsy
exceeds $5,000,000 shall be decided by majority vote of a panel of three arbitrators; provided
however, that all three arbitrators must actively participate in all hearings and deliberations.
1. Findings and Conclusions. Notwithstanding anything herein to the contrary, in any
arbitration in which the amount in controversy exceeds $5 000.000, the arbitrator shall be
required to make specific, written finQings of fact and conclusions oflaw.
2. Damages. The arbitrator(s) shiill have no authority to award punitive or other damages
not measured by the prevailing Party s actual damages, except as may be required by statute.
The arbitrator(s) shall not award incidental or consequential damages in any arbitration
initiated under this Section.
3. Other. To the maximum extent practicable, the the arbitrators and the Parties
shall take all action required to conclude any arbitration proceeding within 180 days of the
tiling of the Dispute with the AAA. No arbitrator or other Party to an arbitration proceeding
may disclose the existence, content or results thereof, except for disclosures of information
by a Party required in the ordinary course of its business, by applicable law or regulation, or
to the extent necessary to exercise any judicial review rights set forth herein. This arbitration
provision shall survive termination, Cancellation, expiration or amendment of the Agreement
or any other relationship between the Parties.
16.Governing Law. The laws of tht State of California, without regard to conflicts of law
principles, shall govern the execution, interpretation and performance of this Agreement
17.Joint Document. This Agreement has been, and shall be construed to have been, drafted
by Employer and Wells Fargo Home Equity.
Culllld~.h.d Paae 7 10I9nIXr1
Corp Guarantee Mut.er CooIrII:t Jim BridF PlaDt- finall~.doc
18.
19.
Counterparts. This Agreement may be executed in any number of counterparts, each of
which shall be an original; however, all such counterparts shall together constitute one
and the same instnlment
Waiver. Failure of any PartY to insist, in anyone or more instances, on strict
performance of any provisions of this Agreement, or to exercise any right, remedy or
option herein contained, or to serve any notice, or to institute any action or proceeding,
shall not be construed as a waiver or relinquishment for the future of any such provisions,
rights, remedies or options, and no waiver of any provision of this Agreement shall be
deemed effective unless made in Writing and signed by the Parties hereto.
20.SeverabWty. Wherever possible. any provision of this Agreement shall be interpreted in
such manner as to be effective and valid under Governing Law, but if any provision of
this Agreement shall be prohibit6d by or invalid under Governing Law, such provision
shall be ineffective to the extent of such prohibition or invalidity, without invalidating the
remainder of such provision or the remaining provisions of this Agreement.
IN WITNESS WHEREOF, this Agreement has been executed as of the day and year first
above written.
Wells Fargo Bank, National Association PacifiCorp ~nergy
By:
/itt~ By:
":'"' ,," .-.' ..
Name:Name: Bob Arambel
Title:Title: Mana2ing Director. Plant
Ct...fi~ldIII
Corp Guuultee Muter ContI'8Ct Jim Briel..,. Pl8llt- fiDal 10-8007.doc
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