ASSET SALE AGREEMENT
BETWEEN
TRI-STATE GENERATION AND TRANSMISSION ASSOCIATION, INC.,
A COLORADO COOPERATIVE ASSOCIATION
AND
PUBLIC SERVICE COMPANY OF NEW MEXICO,
A NEW MEXICO CORPORATION
DATED _____________
SEPTEMBER 9, 1999
TABLE OF CONTENTS
ARTICLE I. SALE AND PURCHASE OF ASSETS.................................... 1
1.1 Sale and Purchase of Assets............................... 1
1.2 Liability for Taxes, etc.................................. 3
1.3 Revisions to Exhibits..................................... 3
ARTICLE II. CONSIDERATION.................................................. 3
2.1 Purchase Price............................................ 3
2.2 Allocation of Purchase Price.............................. 3
ARTICLE III. ASSUMPTION OF LIABILITIES...................................... 4
3.1 Contracts................................................. 4
3.2 Post-Closing Liabilities.................................. 4
3.3 Other Liabilities......................................... 4
ARTICLE IV. PRORATION OF TAXES; OPERATIONS AGREEMENTS...................... 4
4.1 Proration of Taxes........................................ 4
4.2 Operations Agreements..................................... 4
ARTICLE V. GENERAL REPRESENTATIONS AND WARRANTIES......................... 4
5.1 Representatives and Warranties of Seller.................. 4
5.2 Representations and Warranties of Buyer................... 9
5.3 Disclosure Schedules......................................10
5.4 DISCLAIMER OF OTHER REPRESENTATIONS AND WARRANTIES........11
ARTICLE VI. PRE-CLOSING COVENANTS OF SELLER AND BUYER......................11
6.1 ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act.....................................11
6.2 Good Faith Efforts........................................11
6.3 Notice of Developments....................................11
6.4 Environmental Site Assessments............................11
ARCTICLE VII. COVENANTS OF SELLER...........................................11
7.1 Consents..................................................12
7.2 NMPRC Approvals...........................................12
7.3 Operation of the Property.................................12
7.4 Access....................................................12
7.5 Additional Covenants of Seller............................13
ARTICLE VIII. COVENANTS OF BUYER............................................13
8.1 Consents..................................................13
8.2 NMPRC and FERC Approvals..................................13
ARTICLE IX. CONDITIONS PRECEDENT..........................................14
9.1 Conditions to Obligations of Buyer........................14
9.2 Conditions to Obligations of Seller.......................15
ARTICLE X. CLOSING AND POST-CLOSING OBLIGATIONS..........................16
10.1 Closing...................................................16
10.2 Post-Closing..............................................17
ARTICLE XI. NON-SURVIVAL OF REPRESENTATIONS, WARRANTIES, COVENANTS
AND AGREEMENTS...............................................17
ARTICLE XII. TERMINATION....................................................18
12.1 Termination...............................................18
12.2 Effect of Agreement Upon Termination......................18
ARTICLE XIII. OTHER AGREEMENTS..............................................19
13.1 Discharge of Liabilities..................................19
13.2 Delivery and Maintenance of Records.......................19
13.3 Arbitration...............................................20
13.4 Consents Not Obtained.....................................23
13.5 Navopache Arrangement.....................................23
13.6 Headquarters Building.....................................23
13.7 Rights-of-Way Renewals....................................24
ARTICLE XIV. MISCELLANEOUS..................................................24
14.1 Notices...................................................24
14.2 Governing Law.............................................24
14.3 Modification/Waiver.......................................24
14.4 Assignment................................................25
14.5 No Brokers................................................25
14.6 Public Announcements......................................25
14.7 Severability..............................................25
14.8 Paragraph Headings........................................25
14.9 Counterparts..............................................25
14.10 Entire Agreement..........................................25
ASSET SALE AGREEMENT
THIS ASSET SALE AGREEMENT (this "Agreement") is made and entered into
as of the ______ day of _______________, 1999 (the "Signing Date"), by and
between TRI-STATE GENERATION AND TRANSMISSION ASSOCIATION, INC., a Colorado
cooperative association ("Seller"), and PUBLIC SERVICE COMPANY OF NEW MEXICO, a
New Mexico corporation ("Buyer").
WHEREAS, as of March 18, 1999, Seller and Plains Electric Generation
and Transmission Cooperative, Inc. ("Plains") entered into a Transaction
Agreement (the "Transaction Agreement") providing for the merger of Plains with
and into Seller (the "Merger"); and
WHEREAS, Seller is required to enter into this Agreement with Buyer by
Section 5.3(c) of the Transaction Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements contained herein, the parties hereto agree as follows:
ARTICLE I.
SALE AND PURCHASE OF ASSETS
---------------------------
1.1 Sale and Purchase of Assets. Subject to all the terms and
conditions set forth in this Agreement, on the Closing Date and at the Closing
(as such terms are defined in Article X of this Agreement), Seller hereby agrees
to sell, transfer, assign and convey to Buyer all of the following described
assets (collectively, the "Assets") which will be owned by Seller following the
Merger, and Buyer hereby agrees to purchase, assume and accept the Assets from
Seller:
(i) Generating Assets. An ownership interest, as specified on
Exhibit 1.1(i) attached hereto, in and to the electric
generating facility and related common facilities described on
Exhibit 1.1(i), together with the same ownership interest in
and to the real property interests (including, without
limitation, any easements, rights-of-way, permits or other
equivalent real property usage rights) related thereto
(collectively, the "Generating Assets").
(ii) Transmission Assets. An ownership interest, as specified on
Exhibit 1.1(ii) attached hereto, in and to those transmission
and distribution lines, interconnections and other components
of the system identified on Exhibit 1.1(ii), together with the
same ownership interest in and to the real property interests
(including, without limitation, any easements, rights-of-way,
permits or other equivalent real property usage rights)
related thereto (collectively, the "Transmission Assets").
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(iii) Substations. An ownership interest, as specified on Exhibit
1.1(iii) attached hereto, in and to those substations,
interconnections and related components which are identified
on Exhibit 1.1(iii), together with the same ownership interest
in all of the real property interests (including, without
limitation, any easements, rights-of-way, permits or other
equivalent real property usage rights) related thereto
(collectively the "Substations").
(iv) Telecommunications Assets. An ownership interest, as specified
on Exhibit 1.1(iv) attached hereto, in and to those
telecommunications facilities and related equipment described
on Exhibit 1.1(iv), together (where indicated on Exhibit
1.1(iv)) with the same ownership interest in all of the real
property interests (including, without limitation, any
easements, rights-of-way, permits or other equivalent real
property usage rights) related thereto (the
"Telecommunications Assets").
(v) Headquarters Facility. The headquarters facility and related
common facilities described on Exhibit 1.1(v) attached hereto,
together with all of the real property interests (including,
without limitation, any easements, rights-of-way, permits or
other equivalent real property usage rights) related thereto
(collectively, the "Headquarters Facility").
(vi) Personal Property. The office furniture, equipment and other
personal property described on Exhibit 1.1(vi) attached hereto
(the "Personal Property").
(vii) Contracts. The rights of Plains (and, following consummation
of the Merger, of Seller) under the contracts, leases and
other agreements listed on Exhibit 1.1(vii) attached hereto,
to the extent described on Exhibit 1.1(vii) (to the extent so
described, the "Contracts").
(viii) Business Records. Subject to Section 13.2 hereof, all business
records associated with the Assets as of the time of the
Closing, including but not limited to financial, operating,
accounting, tax, business, marketing and other files,
documents, instruments, papers, customer list(s), books,
ledgers, records, insurance policies, and any and all records
of annual testing and certification (the "Business Records").
(ix) Licenses and Permits. To the extent assignable, and to the
extent held by Seller as of the Closing Date, permits or
licenses to the extent that the parties agree are necessary
for Buyer to operate the Assets (the "Licenses and Permits").
(x) Navopache Assets. Subject to Section 13.5 hereof, the
assets described on Exhibit 1.1 (ix) attached hereto (the
"Navopache Assets").
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1.2 Liability for Taxes, etc. Liability for any real estate transfer
fees and taxes shall be borne by Buyer. The parties expect that no liability for
sales, use or gross receipts tax will result from this transaction, but, in the
event that such liability does arise, it shall be borne by Buyer.
1.3 Revisions to Exhibits. Seller and Buyer recognize and agree that
the foregoing Exhibits may not completely and/or accurately identify all Assets,
and further agree to cooperate with each other to prepare, supplement or amend
any such Exhibit in order to have a complete and accurate description of the
Assets before the Closing.
ARTICLE II.
CONSIDERATION
-------------
2.1 Purchase Price. The purchase price to be paid for the Assets (the
"Purchase Price") shall be an amount provisionally estimated by the parties (on
the basis of Plains' financial information as of December 31, 1997) to be
Thirteen Million Two Hundred Forty Eight Thousand One Hundred Thirty Four and
03/100 Dollars ($13,248,134.03), to be paid in full at the Closing, together
with the assumption of the liabilities described in Article III, to be assumed
at the Closing. Within fifteen (15) business days after the Signing Date, Seller
shall provide to Buyer financial information as of December 31, 1998, with
reasonable supporting documentation, that will update the December 31, 1997
financial information previously provided to Buyer. Notwithstanding the
foregoing, Seller will provide to Buyer a revised estimated Purchase Price at
least fifteen (15) days prior to the Closing Date, calculated in the manner
described on Exhibit 2.1 attached hereto and on the basis of financial
information that is current as of the date on which such revised estimated
Purchase Price is established, and such revised estimate will be the basis for
the payment of the Purchase Price on the Closing Date. As soon as possible (but
no more than forty-five days) after the Closing Date, the parties will negotiate
in good faith to agree to and establish a final Purchase Price, and within five
(5) business days after such final Purchase Price is established, one party will
make to the other a payment to reconcile the difference between the provisional
Purchase Price (revised as hereinbefore described) and the final Purchase Price.
In the event the parties are unable to agree on a final Purchase Price, such
dispute will be submitted to arbitration pursuant to Section 13.3 hereof.
2.2 Allocation of Purchase Price. The Purchase Price shall be allocated
among the Assets in such manner as may be agreed upon by the parties prior to
the Closing in accordance with Section 1060 of the Internal Revenue Code of
1986, as amended (the "Code"); provided, however, that if the parties cannot
mutually agree upon such allocation, such allocation shall be conclusively
determined by an independent appraiser selected by the parties, who shall
prepare such appraisal in accordance with Section 1060 of the Code. The parties
agree that any tax filings that they may make in relation to the Assets shall be
consistent with such allocations.
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ARTICLE III.
ASSUMPTION OF LIABILITIES
-------------------------
3.1 Contracts. Subject to all the terms and conditions set forth in
this Agreement and in the Operations Agreements described in Section 4.2 hereof,
effective from and after the Closing Date, Buyer hereby agrees to assume and be
bound by and to perform, observe and comply with all of the terms, covenants,
conditions, undertakings and other provisions of the Contracts, in the same
manner and with the same force and effect as if Buyer had originally executed
such Contracts in the place and stead of Seller (or Plains, as the case may be),
and agrees faithfully to perform each of the Contracts from and after the
Closing Date.
3.2 Post-Closing Liabilities. Subject to all the terms and conditions
set forth in this Agreement and in the Operations Agreements described in
Section 4.2 hereof, effective from and after the Closing Date, Buyer hereby
agrees to assume and be bound by and to pay and discharge all liabilities that
arise on or subsequent to the Closing Date out of the ownership or operation of
any of the Assets.
3.3 Other Liabilities. Except as expressly provided in this Article
III, Buyer is not assuming and shall have no responsibility for any obligations
or liabilities of Seller.
ARTICLE IV.
PRORATION OF TAXES; OPERATIONS AGREEMENTS
-----------------------------------------
4.1 Proration of Taxes. Real property taxes and personal property taxes
attributable to the Assets for the year in which the Closing occurs, together
with utility charges and rents, shall be prorated between Buyer and Seller as of
the Closing Date.
4.2 Operations Agreements. On or prior to the Closing Date (or as
otherwise specified on Exhibit 4.2 attached hereto), Seller and Buyer shall
enter into the operations, transmission, power marketing and other agreements
(collectively, the "Operations Agreements") listed on Exhibit 4.2 hereto.
ARTICLE V.
GENERAL REPRESENTATIONS AND WARRANTIES
--------------------------------------
5.1 Representatives and Warranties of Seller. Except to the extent set
forth on the Seller's Disclosure Schedule described in Section 5.3 hereof,
Seller hereby represents and warrants to Buyer for and on behalf of itself and,
where indicated, for and on behalf of Plains, that the following statements
contained in this Section 5.1 will be correct and complete as of the date of
delivery of such Disclosure Schedule and as of the Closing Date (as though made
on the Closing Date):
(i) Due Incorporation, etc. Seller is duly incorporated, existing
and in good standing under the laws of the State of Colorado,
and has all requisite corporate power and authority to own its
properties and conduct its business as presently owned and
conducted.
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(ii) Due Authorization, etc. Seller has the corporate power and
authority to enter into and perform its obligations under this
Agreement, this Agreement has been duly and validly authorized
by the Board of Directors of Seller, and no other corporate
action on the part of Seller is required in connection with
this Agreement. When completed, this Agreement and any related
agreements of Seller hereunder shall constitute valid and
binding obligations of Seller that shall be enforceable
against Seller in accordance with the terms hereof and
thereof.
(iii) No Violation. This Agreement and the execution and delivery
hereof by Seller do not, and the fulfillment of and compliance
with the terms and conditions hereof and the consummation of
the transactions contemplated hereby will not:
(a) Violate or conflict with any provision of the
articles of incorporation or bylaws, each as amended
to date, of Seller;
(b) Violate or conflict with or require any consent,
authorization or approval under any provision of any
law or administrative regulation or any judicial,
administrative or arbitration order, award, judgment,
writ, injunction or decree applicable to or binding
upon Seller (except the approval of the Rural
Utilities Service ("RUS"), the New Mexico Public
Regulation Commission ("NMPRC"), the Federal
Communications Commission ("FCC") and the expiration
or early termination of the required waiting period,
if applicable, under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust
Improvements Act of 1976, as amended (the
"▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act"));
(c) Result in a breach of, constitute a default or
violation under (whether with notice or lapse of time
or both) or require any consent, authorization or
approval under any mortgage, indenture, loan or
credit agreement or any other agreement or instrument
evidencing indebtedness for money borrowed to which
Seller is a party or by which any of its properties
or assets is bound; or
(d) Result in the creation or imposition of any lien,
charge, security interest or other encumbrance upon
the Assets.
(iv) Compliance with Laws and Regulations. Seller's and Plains'
ownership and operation of the Assets is in compliance with
all applicable laws, regulations, orders, judgments or decrees
of any Governmental Authority (as herein defined) having
jurisdiction over the Assets, except such violations as would
not have a Material Adverse Effect (as herein defined) with
respect to the Assets. For the purposes of this Agreement,
"Governmental Authority" shall mean the United States of
America, any state, commonwealth, territory or possession
thereof and any tribe or pueblo, and any political subdivision
of any of the foregoing, including, but not limited to,
courts, departments, commissions, boards, bureaus, agencies or
other instrumentalities; and "Material Adverse Effect" with
respect to the Assets shall mean a change or occurrence which,
in the reasonable judgment of the Buyer, is or is likely to be
materially adverse to the value or condition of the Assets.
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(v) Taxes. All taxes, assessments and charges by Governmental
Authorities which are due and payable by Seller and Plains
with respect to the Assets, as applicable, have been paid,
other than those taxes, assessments and charges by
Governmental Authorities being contested in good faith for
which adequate provisions have been made.
(vi) Litigation. There is no action, suit, or proceeding pending
or, to the knowledge of Seller or Plains, threatened against
Seller or Plains (i) which could reasonably be expected to
materially hinder Seller's ability to consummate the
transactions contemplated by this Agreement, or (ii) which
specifically concerns the Assets.
(vii) Environmental. Seller and Plains:
(a) Have operated the Assets in compliance in all
respects with all applicable Environmental Laws (as
herein defined), except such violations as would not
have a Material Adverse Effect with respect to the
Assets; for the purposes of this Agreement,
"Environmental Laws" shall mean federal, state,
tribal, pueblo or municipal laws, rules and
regulations governing, regulating or relating to
pollution or the protection of the environment,
including, but not limited to, the Resource
Conservation and Recovery Act of 1976, as amended,
the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended,
the Superfund Amendments and Reauthorization Act of
1986, as amended, and all similar state, tribal,
pueblo, municipal and local laws, ordinances, rules,
regulations, orders, directives, determinations and
requirements each as in effect on the Signing Date
for purposes of the representations given on the
Signing Date and as in effect on the Closing Date for
all other purposes of this Agreement;
(b) Have obtained all Governmental Licenses (as herein
defined) which are required under any Environmental
Law applicable to the Assets except to the extent
that the failure to obtain any such Governmental
License would not have a Material Adverse Effect with
respect to the Assets; for the purposes of this
Agreement, "Governmental Licenses" shall mean
licenses, permits, certificates of public convenience
and necessity, consents and other similar licenses
issued by any Governmental Authority;
(c) Have not received written notice from any
Governmental Authority of any unresolved violation of
or pending or threatened action, suit, inquiry,
proceeding or investigation relating to any
Environmental Law applicable to the Assets which
unresolved violation or investigation would have a
Material Adverse Effect with respect to the Assets;
and
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(d) Have not received written notice from any
Governmental Authority of any legally required
environmental removal, remediation or clean-up
obligation with respect to the Assets that would have
a Material Adverse Effect on the Assets.
(viii) Maintenance of the Assets. Seller and Plains have maintained
the Assets in reasonable operating condition and repair and
the Assets are adequate to perform normal operations
consistent with Plains' recent practices, except where the
failure to maintain would not have a Material Adverse Effect
with respect to the Assets.
(ix) Contracts. Seller and Plains have provided Buyer with complete
copies of the Contracts and all amendments thereto. The
Contracts are in full force and effect. No third party to any
Contract has prepaid more than 30 days in advance any amounts
due thereunder. Seller has not waived its remedies for default
by, or expressly waived any other rights against, a third
party under any Contract. Seller and Plains have made all
payments due thereunder, if any, except those being contested
in good faith, and have performed all of their material
obligations under such Contracts, except for such failures to
make payments or perform obligations which would not have a
Material Adverse Effect with respect to the Assets. To the
knowledge of Seller and Plains, there are no written proposals
or threats by third parties to cancel, revise or fail to renew
any Contract or fail to renew, cancel or revise any
right-of-way or easement.
(x) Title to Property. Plains has, and on the Closing Date Seller
will have, good and marketable title to the Assets, in each
case free and clear of all mortgages, liens, charges, security
interests, or other encumbrances except Permitted Encumbrances
(as herein defined). To the knowledge of Seller, no adverse
title claims are pending or threatened with respect to any
portion of the Assets and Seller owns its rights in the same
free and clear of all mortgages, liens, charges, security
interests or other encumbrances except Permitted Encumbrances.
For the purposes of this Agreement, "Encumbrances" shall mean
all liens, mortgages, pledges, claims, charges, security
interests or other encumbrances, including, without
limitation, any leases, subleases, rights-of-way, licenses,
easements, options to purchase, encumbrances, covenants,
building use restrictions, exceptions, variances, restrictions
or limitations, and "Permitted Encumbrances" shall mean (a)
Encumbrances for current real property, personal property or
ad valorem taxes which are not yet due and payable, (b)
mineral rights and claims to minerals which do not materially
adversely affect the value, condition or usefulness of the
property affected thereby, (c) water rights and claims to
water which do not materially adversely affect the value,
condition or usefulness of the property affected thereby, and
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(d) easements, covenants, restrictions and reservations (not
arising out of or created in connection with the borrowing of
money, including the obtaining of advances, or the payment of
the deferred purchase price of property) which do not
materially adversely affect the value, condition or usefulness
of the property affected thereby. As of the date of delivery
of Seller's Disclosure Schedule, but not on the Closing Date,
Permitted Encumbrances shall include (i) "Permitted
Encumbrances" as such term is defined in that certain
Consolidated Mortgage and Security Agreement, dated as of
April 15, 1992, as amended, between Plains and the United
States of America acting through the Administrator of the RUS,
the National Rural Utilities Cooperative Finance Corporation,
CoBank ACB and The Bank of New York, as successor in trust to
Sunwest Bank of Albuquerque, National Association (the "Plains
Mortgage"), and (ii) any encumbrances created by the Plains
Mortgage.
(xi) Historical Operating Data and Financial Statements. All
historical operating data and financial information delivered
in writing to Buyer was accurate in all material respects as
of the date provided.
(xii) No Third Party Options. There are no existing agreements,
options, commitments, or rights with or to any person to
acquire any of the Assets, properties or rights included in
the Assets.
(xiii) FERC Regulation. None of the Assets is subject to rate
regulation or a filed tariff under the Federal Power Act.
(xiv) RUS Regulation. Seller and Plains are subject to regulation by
the RUS and the Closing is contingent upon Seller obtaining
all required approvals and authorizations from the RUS with
respect to the execution and performance of this Agreement.
(xv) Environmental Assessments. No written environmental assessment
of the Assets has been prepared by a third party on behalf of
Seller or Plains within the 5-year period preceding the
Signing Date.
(xvi) Deeds. Seller or Plains has provided Buyer full and complete
copies of all deeds under which such Seller or Plains holds
fee title to any real property that is a part of the Assets.
Neither Plains nor Seller has transferred any right, title or
interest in any such fee property.
(xvii) Existing Arrangements. Exhibit 5.1(xvii) attached hereto lists
the existing contractual arrangements (the "Existing
Arrangements") between Plains and Buyer and describes the
proposed disposition of the Existing Arrangements through
assignment, termination or modification. Seller and Buyer
agree to use their best efforts to promptly achieve the
assignment, termination or modification of the Existing
Arrangements as shown in Exhibit 5.1(xvii).
(xviii) Rights-of-Way. The Assets include all easements,
rights-of-way, permits or other equivalent real property usage
rights in respect of any real property comprising the Assets,
as may be reasonably necessary to operate the Assets, and none
of such easements, rights-of-way, permits or other equivalent
real property usage rights have expired.
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5.2 Representations and Warranties of Buyer. Except to the extent set
forth on the Buyer's Disclosure Schedule described in Section 5.3 hereof, Buyer
hereby represents and warrants to Seller that the following statements contained
in this Section 5.2 will be correct and complete as of the date of delivery of
such Disclosure Schedule and as of the Closing Date (as though made on the
Closing Date):
(i) Due Incorporation, etc. Buyer is duly incorporated, existing
and in good standing under the laws of the State of New
Mexico, and has all requisite corporate power and authority to
own its properties and conduct its business as presently owned
and conducted.
(ii) Due Authorization, etc. Buyer has the corporate power and
authority to enter into and perform its obligations under this
Agreement, this Agreement has been duly and validly authorized
by the Board of Directors of Buyer, and no other corporate
action on the part of Buyer is required in connection with
this Agreement. When completed, this Agreement and any related
agreements of Buyer hereunder shall constitute valid and
binding obligations of Buyer that shall be enforceable against
Buyer in accordance with the terms hereof and thereof.
(iii) No Violation. This Agreement and the execution and delivery
hereof by Buyer do not, and the fulfillment and compliance
with the terms and conditions hereof and the consummation of
the transactions contemplated hereby will not:
(a) Violate or conflict with any provision of the
certificate of incorporation or bylaws, each as
amended to date, of Buyer;
(b) Violate or conflict with or require any consent,
authorization or approval under any provision of any
law or administrative regulation or any judicial,
administrative or arbitration order, award, judgment,
writ, injunction or decree applicable to or binding
upon Buyer (except the approvals of the NMPRC, the
Federal Energy Regulatory Commission ("FERC") and the
FCC and the expiration or early termination of the
required waiting period, if applicable, under the
▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act); or
(c) Result in a breach of, constitute a default or
violation under (whether with notice or lapse of time
or both) or require any consent, authorization or
approval under any mortgage, contract, indenture,
loan or credit agreement or any other agreement or
instrument evidencing indebtedness for money borrowed
to which Buyer is a party or by which any of its
properties or assets is bound.
(iv) Litigation. There is no action, suit or proceeding, pending
or, to the knowledge of Buyer, threatened against Buyer which
would have a material adverse effect with respect to Buyer or
would materially hinder Buyer's ability to consummate the
transactions contemplated by this Agreement.
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(v) Funds Available. Buyer has, or will have on and after the
Closing Date, sufficient cash, available lines of credit or
other sources of immediately available funds to enable it to
pay the Purchase Price.
(vi) Qualification. Buyer has, or as of the Closing Date will have,
all Governmental Licenses necessary or required to own and
operate the Assets, and to perform the obligations of Seller
under the Contracts.
5.3 Disclosure Schedules. No later than forty five (45) days after the
Signing Date, each party shall prepare and deliver to the other party a
Disclosure Schedule relating to its respective representations and warranties
contained in this Article V. Nothing in any Disclosure Schedule shall be deemed
adequate to disclose an exception to a representation or warranty made herein
unless the Disclosure Schedule identifies the exception with particularity and
describes the relevant facts in detail. Without limiting the generality of the
foregoing, the mere listing (or inclusion of a copy) of a document or other item
shall not be deemed adequate to disclose an exception to a representation or
warranty made herein (unless the representation or warranty has to do with the
existence of the document or other item itself).
5.4 DISCLAIMER OF OTHER REPRESENTATIONS AND WARRANTIES. EXCEPT AS
EXPRESSLY PROVIDED HEREIN, SELLER MAKES NO REPRESENTATION OR WARRANTY, WHETHER
WRITTEN, ORAL, STATUTORY, COMMON LAW, EXPRESS OR IMPLIED, CONCERNING THE ASSETS,
INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE OR USE.
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ARTICLE VI.
PRE-CLOSING COVENANTS OF SELLER AND BUYER
-----------------------------------------
The parties agree as follows with respect to the period between the
Signing Date and the Closing Date:
6.1 ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act. The parties agree to make as promptly as
practicable all filings, if any, required in connection with the
▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act.
6.2 Good Faith Efforts. Each party will use good faith efforts (i) to
take all action necessary to render accurate, as of the Closing Date, its
representations and warranties contained herein, and to refrain from taking any
action which would render any such representation or warranty inaccurate as of
the Closing Date, (ii) to perform or cause to be satisfied each covenant or
condition to be performed or satisfied by it pursuant to this Agreement, and to
cause the Closing to occur, and (iii) to obtain all licenses or other approvals
required to be obtained by it from any appropriate governmental or regulatory
body or other person in connection with its obligations hereunder.
6.3 Notice of Developments. Each party will give prompt written notice
to the other of any material adverse development causing a breach of any of its
own representations and warranties contained herein. Except as specified in such
written notice, no disclosure by a party pursuant to this Section 6.3 shall be
deemed to amend or supplement such party's Disclosure Schedule or to prevent or
cure any misrepresentation, breach of warranty or breach of covenant.
6.4 Environmental Site Assessments. Buyer and Seller agree to conduct
Phase I Environmental Site Assessments of the Assets prior to the Closing Date,
as mutually determined by them, and shall share the costs of such agreed upon
assessments based on their respective agreed ownership percentage of the
specific Asset in question.
ARTICLE VII.
COVENANTS OF SELLER
-------------------
Seller covenants and agrees with Buyer that, except as may be approved
by Buyer in writing, which approval shall not be unreasonably withheld or
delayed:
7.1 Consents. Seller agrees to use, and to cause Plains to use, all
reasonable efforts to obtain and make and to assist Buyer, as applicable, in
obtaining and making, as appropriate, (a) all necessary consents, authorizations
and approvals, (b) all findings necessary for the consummation of the
transactions contemplated by this Agreement, and (c) all Governmental Licenses
necessary for Buyer's operation of the Assets after Closing.
7.2 NMPRC Approvals. Seller has filed for necessary NMPRC approvals and
agrees to submit as promptly as possible any additional filings necessary in
connection with proceedings before the NMPRC for necessary approvals with
respect to the transactions contemplated by this Agreement and shall use its
reasonable efforts to obtain such approvals. Seller shall provide Buyer with
copies of any NMPRC filings (or portions thereof) prior to submitting the
filings to the NMPRC.
11
7.3 Operation of the Property. From the Signing Date to the
Closing Date:
(i) The Assets shall be operated and maintained in reasonable
operating condition and repair adequate to perform normal
operations consistent with Plains' past practices; and
(ii) Seller shall, except with respect to commitments already made
prior to the Signing Date, as set forth in the Seller
Disclosure Schedule, obtain Buyer's prior written approval
(which approval may not be unreasonably withheld) before (a)
Seller or Plains enters into any material contract binding on
any of the Assets, or Buyer in its capacity as owner of the
Assets, after the Closing Date, except for any month-to-month
renewals of any existing contracts that terminate not more
than one month after the Closing Date; (b) Seller or Plains
voluntarily abandons any easement that constitutes part of the
Assets; (c) Seller or Plains sells, transfers or otherwise
disposes of any Assets except in the ordinary course of
business; or (d) Seller or Plains encumbers any of the Assets
except in the ordinary course of business and other than any
Encumbrances that do not materially detract from the value of
the Assets.
7.4 Access. From the Signing Date to the closing date of the Merger
under the Transaction Agreement, Seller shall, upon reasonable advance notice
and during normal business hours, use reasonable efforts to cause Plains to
allow Buyer and its Representatives (as herein defined), and thereafter until
the Closing Date shall allow Buyer and its Representatives, in either event at
Buyer's sole risk and expense and for the purpose of investigating the Assets in
connection with the transactions contemplated by this Agreement, to:
(i) Inspect and become familiar with the Assets;
(ii) Subject to the right of Seller to have its own Representatives
present, consult with Seller's attorneys, accountants,
engineers and other Representatives concerning the ownership,
use or operation of the Assets; and
(iii) Examine the Business Records.
For the purpose of this Agreement, "Representatives" shall mean the affiliates
of a person and its and their directors, officers, employees, agents and
advisors.
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7.5 Additional Covenants of Seller. From the Signing Date to the
Closing Date:
(i) Seller shall use reasonable efforts to, and shall use
reasonable efforts to cause Plains to, preserve and maintain
in force all of its licenses, permits, registrations,
franchises, and bonds applicable to the Assets.
(ii) Seller shall use reasonable efforts to, and shall use
reasonable efforts to cause Plains to, comply with all laws,
ordinances, rules, regulations, and orders applicable to the
Assets, the noncompliance with which would result in a
Material Adverse Effect on the Assets.
(iii) Seller shall either cause Plains to maintain in effect its
excess liability insurance policies with respect to the Assets
that are in effect on the Signing Date or obtain and maintain
in effect equivalent "tail coverage" for such periods, if any,
as Seller may have an obligation to indemnify Buyer hereunder
for third-party claims covered by such insurance. With respect
to the periods set forth above, Seller shall not (other than
through contract terminations in the ordinary course of
business) cancel any third party indemnity rights regarding
the Assets to which such Seller is entitled as of the Signing
Date.
ARTICLE VIII.
COVENANTS OF BUYER
------------------
Buyer covenants and agrees with Seller that, except as may be approved
by Seller in writing, which approval shall not be unreasonably withheld or
delayed:
8.1 Consents. Buyer agrees to use all reasonable efforts to obtain and
make and to assist Seller, as applicable, in obtaining and making, as
appropriate, (a) all necessary consents, authorizations and approvals and (b)
all filings necessary for the consummation of the transactions contemplated by
this Agreement.
8.2 NMPRC and FERC Approvals. Buyer has filed for necessary NMPRC
approvals and agrees to submit as promptly as possible all additional filings
necessary in connection with proceedings before the NMPRC and the FERC for
necessary approvals and shall use its reasonable efforts to obtain such
approvals. Buyer shall provide Seller with copies of any NMPRC or FERC filings
(or portions thereof) prior to submitting the filings to the NMPRC or the FERC,
respectively.
ARTICLE IX.
CONDITIONS PRECEDENT
--------------------
9.1 Conditions to Obligations of Buyer. All of the obligations of Buyer
under the terms of this Agreement are subject to fulfillment prior to or on the
Closing Date of each of the following conditions or the waiver thereof by Buyer:
13
(i) Material Discrepancies or Breaches. Buyer shall not have
discovered any material error, misstatement or omission in the
representations and warranties made by Seller (for itself and
on behalf of Plains) or any material breach in the
undertakings and agreements by Seller (for itself and on
behalf of Plains) as set forth in this Agreement.
(ii) Continuing Representations and Warranties. All representations
and warranties by Seller which are contained in this Agreement
shall (subject to any disclosures contained on Seller's
Disclosure Schedule) be correct and complete in all material
respects on and as of the Closing Date as though made on such
date. None of the disclosures contained on Seller's Disclosure
Schedule shall disclose any matter that would have (i) a
material adverse effect on the ability of Seller to consummate
the sale of the Assets hereunder, or (ii) a Material Adverse
Effect with respect to the Assets. If Seller's Disclosure
Schedule discloses a matter that would have a Material Adverse
Effect with respect to one or more individual Assets, Buyer
and Seller shall use their best efforts to negotiate such
adjustments as may be necessary to carry out the original
intent of the parties with respect to the remaining Assets not
affected by the disclosure.
(iii) Performance of Conditions. Seller (and, where applicable,
Plains) shall have performed and complied with all other
agreements and conditions required by this Agreement to be
performed by and complied with by Seller (and, where
applicable, Plains) on or before the Closing Date.
(iv) Consents, etc. Buyer and Seller shall have obtained all
regulatory approvals, authorizations, consents, licenses,
permits and acceptances from relevant federal, state and local
authorities, in form and substance acceptable to the receiving
party, which are necessary or required to be obtained by such
party in order to consummate the transaction, except where the
failure to obtain such approval, authorization, consent,
license, permit or acceptance will not interfere materially
with the consummation of the transaction.
(v) Merger. The closing of the Merger under the Transaction
Agreement shall have occurred.
(vi) Operations Agreements. The parties shall have entered into the
Operations Agreements.
(vii) No Orders. The Closing shall not violate any order or decree
with respect to the transactions contemplated by this
Agreement issued by any court or governmental body having
competent jurisdiction over such transactions.
(viii) Adverse Change. Since the Signing Date, there shall have been
no changes in or losses to the Assets, not cured by Seller at
its option, which have had, individually or in the aggregate,
a Material Adverse Effect on the Assets.
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9.2 Conditions to Obligations of Seller. All of the obligations of
Seller under the terms of this Agreement are subject to fulfillment prior to or
on the Closing Date of each of the following conditions or the waiver thereof by
Seller:
(i) Material Discrepancies or Breaches. Seller shall not have
discovered any material error, misstatement or omission in the
representations and warranties made by Buyer or any material
breach in the undertakings and agreements by Buyer as set
forth in this Agreement.
(ii) Continuing Representations and Warranties. All representations
and warranties by Buyer which are contained in this Agreement
shall (subject to any disclosures contained on Buyer's
Disclosure Schedule) be correct and complete in all material
respects on and as of the Closing Date as though made on such
date. None of the disclosures contained on Buyer's Disclosure
Schedule shall disclose any matter that would have a material
adverse effect on the ability of Buyer to consummate the
purchase of the Assets hereunder.
(iii) Performance of Conditions. Buyer shall have performed and
complied with all other agreements and conditions required by
this Agreement to be performed by and complied with by Buyer
on or before the Closing Date, including payment of the
Purchase Price.
(iv) Consents, etc. Buyer and Seller shall have obtained all
regulatory approvals, authorizations, consents, licenses,
permits and acceptances from relevant federal, state and local
authorities, in form and substance acceptable to the receiving
party, which are necessary or required to be obtained by such
party in order to consummate the transaction, except where the
failure to obtain such approval, authorization, consent,
license, permit or acceptance will not interfere materially
with the consummation of the transaction.
(v) Merger. The closing of the Merger under the Transaction
Agreement shall have occurred.
(vi) Operations Agreements. The parties shall have entered into the
Operations Agreements.
(vii) No Orders. The Closing shall not violate any order or decree
with respect to the transactions contemplated by this
Agreement issued by any court or governmental body having
competent jurisdiction over such transactions.
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ARTICLE X.
CLOSING AND POST-CLOSING OBLIGATIONS
------------------------------------
10.1 Closing. Subject to the other terms of this Agreement, the
consummation of the transfer of the Assets (the "Closing") shall be held as soon
as practicable after the receipt of all necessary regulatory approvals and
consents, but not later than six (6) months after the closing of the Merger
under the Transaction Agreement, or such other date as may be agreed upon by the
parties (the "Closing Date"). At the Closing and on the Closing Date, the
following documents and considerations shall be exchanged between the parties:
(i) Deliveries by Seller at the Closing. At the Closing, Seller
shall deliver to Buyer the following documents and
considerations against the simultaneous delivery by Buyer to
Seller of the documents and considerations described in
paragraph 10.1(ii) below:
(a) One or more General Assignments and Bills of Sale in
a form reasonably satisfactory to Buyer,
transferring, assigning and conveying such of the
Assets as are transferable thereby to Buyer, and such
other documents of transfer as are necessary to
transfer the Licenses and Permits that are not
transferred by the foregoing General Assignment and
Bills of Sale.
(b) One or more Special Warranty Deeds in a form
reasonably satisfactory to Buyer, transferring any
real estate comprising the Assets to Buyer free and
clear of all liens and encumbrances (except as
expressly provided therein and consistent with the
representations as to title contained in Section
5.1(x) hereof).
(c) Certificates of officers of Seller in the forms of
Exhibit 10.1(i)(c)-1 and Exhibit 10.1(i)(c)-2
attached hereto.
(d) Opinion of counsel of Seller confirming the
representations made by Seller in Sections 5.1(i),
(ii) and (iii) hereof, in customary form and with
customary qualifications.
(e) Such other instruments and documents as Buyer may
reasonably request.
(ii) Deliveries by Buyer at Closing. At the Closing, Buyer shall
deliver to Seller the following documents and considerations
against simultaneous delivery of documents and considerations
by Seller as set forth in paragraph 10.1(i) above:
(a) One or more Assumption Agreements in a form
reasonably satisfactory to Seller, relating to the
Contracts.
(b) The Purchase Price of the Assets, as described in
Section 2.1 hereof.
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(c) Certificates of officers of Buyer in the form of
Exhibit 10.1(i)(c)-1 and Exhibit 10.1(i)(c)-2
attached hereto.
(d) Opinion of Counsel of Buyer confirming the
representations made by Buyer in Sections 5.2(i),
(ii) and (iii) hereof, in customary form and with
customary qualifications.
(e) Such other instruments and documents as Seller may
reasonably request.
10.2 Post-Closing. Seller agrees that it will, upon the request of
Buyer, execute and deliver to Buyer from time to time after the Closing Date,
such other instruments of sale, transfer, assignment and conveyance and take
such other action as Buyer may reasonably request to more effectively vest
ownership of the Assets in Buyer and to put Buyer in possession of all the
Assets. Buyer agrees that it will from time to time execute and deliver to
Seller such additional instruments and take such additional action as Seller may
reasonably request to evidence the agreements of Buyer under this Agreement.
ARTICLE XI.
NON-SURVIVAL OF REPRESENTATIONS, WARRANTIES,
--------------------------------------------
COVENANTS AND AGREEMENTS
------------------------
The representations and warranties made by Seller and Buyer in Article
V of this Agreement and in the certificates contemplated hereby shall form the
basis for conditions to Closing only and shall not survive the Closing Date. No
provision of this Agreement shall form the basis for any action by or on behalf
of either party or any third party for breach, misrepresentation or indemnity at
any time after the Closing Date. Notwithstanding the foregoing, any rights and
obligations of the parties that are expressed to survive the Closing Date shall
so survive the Closing Date, including (without limitation) those described in
Section 2.1; Section 2.2; Section 3.1; Section 3.2; Section 10.2; Section 13.1;
Section 13.2; Section 13.3 (to the extent provided therein); Section 13.4;
Section 13.5; and Section 13.6.
ARTICLE XII.
TERMINATION
-----------
12. 1 Termination. This Agreement may be terminated, at any time at or
prior to the Closing Date, as follows, except as otherwise provided in Section
12.2 below:
(i) By mutual agreement of Buyer and Seller;
(ii) By Buyer or Seller if the Closing shall not have occurred on
or before the date that is six (6) months after the closing of
the Merger under the Transaction Agreement or such later date
as shall be mutually agreed upon by the parties; provided,
however, that no party can so terminate this Agreement if the
Closing has failed to occur because such party failed to
perform or observe its material agreements and covenants
hereunder;
17
(iii) By Buyer or Seller if any Governmental Authority shall have
issued a final order, judgment or decree materially
restraining, enjoining, prohibiting or invalidating the
consummation of the transaction;
(iv) By Buyer or Seller if the NMPRC or the FERC affirmatively
rejects the transaction; provided that the party seeking to
make use of this paragraph 12.1(iv) shall have exhausted all
rights to reargue or appeal such rejection on meritorious
grounds;
(v) By Buyer or Seller if any regulatory agency or Governmental
Authority requires material changes in this Agreement or in
the transaction hereunder as a condition of approval, or
imposes material conditions on this Agreement or the
transaction as a condition of approval, which changes or
conditions are unacceptable to the terminating party; provided
that the terminating party shall have promptly filed and used
reasonable efforts to seek rehearing or modification of such
order; and provided that the terminating party shall provide
the other party with ten days prior notice to allow time for
discussion and consultation between the parties.
12.2 Effect of Agreement Upon Termination. If any party exercises its
rights to terminate this Agreement pursuant to this Article XII, then (a) except
as expressly provided in this Section, no party shall have any rights or
obligations under this Agreement, and such termination shall be without
liability to any party to this Agreement; (b) if this Agreement is terminated as
a result of the negligent or willful failure of Buyer to perform its obligations
hereunder, Buyer shall be fully liable for any and all damages actually
sustained by Seller, provided that Buyer shall not be liable for any
consequential damages sustained or incurred by Seller, nor for any punitive
damages; (c) if this Agreement is terminated as a result of the negligent or
willful failure of Seller to perform its obligations hereunder, Seller shall be
fully liable for any and all damages actually sustained or incurred by Buyer,
provided that Seller shall not be liable for any consequential damages sustained
or incurred by Buyer, nor for any punitive damages; (d) the existing
Confidentiality Agreement between Buyer and Seller shall remain in full force
and effect in accordance with its terms with respect to this transaction and the
materials furnished to Buyer until the later of (i) the expiration of the term
of the Confidentiality Agreement or (ii) two years from the date of termination
of this Agreement.
ARTICLE XIII
OTHER AGREEMENTS
----------------
13.1 Discharge of Liabilities. From and after the Closing Date, Buyer
shall, in accordance with its usual timely practices, fulfill, pay and discharge
all obligations, responsibilities and liabilities in respect of the Contracts.
13.2 Delivery and Maintenance of Records.
(i) As promptly as practicable, but in any case within 90 days
after the Closing Date, Seller will deliver or cause to be
delivered to Buyer to a location designated by Buyer in
Albuquerque, New Mexico all Business Records; provided,
however, that Seller may retain:
18
(a) Originals of all accounting, financial and tax
Business Records for the Assets attributable to all
periods prior to the Closing Date; provided, however,
that Seller shall provide Buyer with copies of all
such accounting, financial and tax Business Records
that Buyer may reasonably request; and
(b) Copies of any other Business Records that Seller
elects to retain.
(ii) Until December 31, 2000, Buyer shall:
(a) (A) Retain the Business Records obtained by Buyer,
(B) furnish copies of such Business Records to Seller
upon Seller's written request and at Seller's sole
expense and (C) make such Business Records available
to Seller and its Representatives upon reasonable
notice and during normal business hours; and
(b) Grant Seller or Seller's Representatives reasonable
access to Buyer's Representatives on a mutually
convenient basis to obtain information, in addition
to the Business Records, with respect to the
continuing obligations or rights, if any, of Seller
under this Agreement or with respect to the Assets
and use its reasonable efforts to cause any such
Representatives to cooperate with Seller by
testifying or furnishing evidence, as applicable, at
Seller's request and expense in any proceedings
relating to the Assets or Seller's continuing
obligations under this Agreement, if any.
13.3 Arbitration.
(i) Any dispute, controversy or claim arising out of or related to
this Agreement, or the breach thereof, shall be exclusively
and finally settled by arbitration pursuant to this Section
13.3. The arbitration proceedings shall be conducted in
accordance with the terms of this Section 13.3 and the
Commercial Arbitration Rules of the American Arbitration
Association ("AAA"), as modified by the AAA's Supplementary
Procedures for Large, Complex Disputes, as in effect on the
date hereof (the "Rules"). Any procedural issues not
determined under this Section or such Rules shall be
determined by the laws of New Mexico, including without
limitation the New Mexico Uniform Arbitration Act, N.M. Stat.
▇▇▇. ss. 44-7-1 et seq.
(ii) Either Buyer or Seller may invoke arbitration under this
Section 13.3 at any time on or before one (1) year after the
Closing Date (or, with respect to any right or obligation that
survives the Closing Date, on or before one (1) year after
such right or obligation expires), by serving on the other
19
party a written notice of arbitration, which shall specify
with reasonable detail (1) the matter in dispute, (2) the
relief requested and (3) the grounds therefor. The arbitration
shall be heard and determined by a board of three (3)
arbitrators (the "Board"), each of whom shall be impartial and
independent of the parties to the dispute. The party giving
notice of the arbitration shall appoint its party arbitrator
in such notice of arbitration. The other party shall appoint
an arbitrator of its choice within twenty (20) days after its
receipt of the notice of arbitration. The parties shall
jointly select and appoint the third arbitrator, who shall be
Chairman of the Board (the "Chairman"), and shall jointly
determine the fee that each arbitrator shall receive, within
thirty (30) days after the notified party's receipt of the
notice of arbitration. If the parties cannot reach agreement
on a Chairman and/or fee, or if any party fails to appoint its
party-appointed arbitrator within the prescribed period, the
missing arbitrator(s) and/or fee shall be selected by the
Phoenix, Arizona office of the AAA pursuant to the selection
process set forth in the Rules as in effect on the date
hereof, provided that all potential arbitrators submitted to
the parties must be chosen from AAA's Large Complex Case Panel
or from a panel of the Center for Public Resources and further
provided that any fee established by AAA must conform to
Section 13.3(vii) below. If an arbitrator should die, withdraw
or otherwise become incapable of serving, a replacement shall
be selected and appointed in a like manner as the original
arbitrator. Any arbitrator appointed hereunder shall certify
in writing that he or she is immediately available to conduct
such arbitration. Upon consultation with the other arbitrators
and the parties, the Chairman shall, within ten (10) days
after appointment, set dates for the hearing. The Chairman
shall preside at all hearings and executive sessions of the
Board. All decisions of the Board shall be by a majority of
the arbitrators, unless the parties agree otherwise.
(iii) (a) The arbitration proceedings shall be held in
Albuquerque, Bernalillo County, New Mexico, at a
place to be agreed upon by the parties.
(b) A stenographic record of the proceedings shall be
made and supplied to the Board.
(c) Unless the parties agree otherwise, the Board shall
require witnesses to testify under oath or
affirmation.
(d) The parties may offer such evidence as is relevant
and material to the dispute and shall produce such
additional evidence as the Board may deem necessary
to the determination of the dispute.
(e) All evidence to be considered by the Board shall be
offered at the hearing and subject to
cross-examination unless the parties agree otherwise.
Exhibits shall be admitted into evidence by the Board
only upon the establishment of a proper foundation
concerning authenticity, unless the parties agree
otherwise.
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(f) There shall be no direct communication between any
party and any arbitrator after the third arbitrator
has been appointed and the arbitrators' fee has been
established except at the hearing and at joint
consultations between both parties and the
arbitrators on the schedule as provided for in
Section 13.3(ii).
(g) Unless the parties agree otherwise, the arbitration
hearing (including any filing of briefs and
submission of documents) shall be closed within 60
days of the appointment of the third arbitrator.
(iv) The Board shall render its award in writing within thirty (30)
days following the close of the hearing. The Board shall
render its award only with respect to the specific issues
submitted by either party, and shall base its decision solely
upon the evidence before it, applicable law and this
Agreement.
(v) Judgment upon the award may be entered and execution had or
application may be made for a judicial acceptance of the award
and an order of enforcement, as the case may be, in any court
located in Bernalillo County, New Mexico.
(vi) The arbitration may proceed in the absence of a party that,
after due notice, fails to be present. An award shall not be
made solely on the default of a party, but the Board shall
require the party that is present to submit such available
evidence as may be reasonably required for the making of an
award.
(vii) The parties shall share equally the cost of the arbitration
proceedings, including the fees and expenses of the
arbitrators and the cost of the stenographic record. Each
arbitrator shall be paid an identical flat fee, which shall
not vary, irrespective of the length of service or number of
hearings, and neither the AAA nor the Board shall have any
authority to authorize the payment of a fee on any other
basis.
(viii) All aspects of the arbitration shall be confidential, and the
parties and arbitrators shall maintain the confidentiality of
all information related to the proceedings, including but not
limited to documents exchanged by the parties, testimony and
other evidence, briefs and the award, and shall not disclose
the same to any third party. Upon the motion of either party,
and for good cause shown, the Board may make any order which
justice requires to protect a party from the disclosure of
proprietary, privileged or confidential business information,
including (1) that hearings be conducted with no one present
except persons designated by the Board, and (2) that exhibits,
other documents filed with the Board or transcripts of the
hearing be sealed and not be disclosed except as specified by
the Board. Notwithstanding the foregoing, each party shall be
entitled to disclose such information (i) to its affiliates,
21
attorneys, financial or lending institutions, outside
auditors, insurers, and entities involved in negotiation or
bidding for the acquisition of a party, its stock or assets,
provided that the person or entity to which such information
is disclosed is obligated to hold it confidential, (ii) as may
be required by law or by regulation or order of Governmental
Authority or by the rules of any stock exchange applicable to
such party or its affiliates, or as part of any party's good
faith attempt to comply with disclosure obligations under any
of the same, (iii) as Seller or Buyer may deem necessary or
desirable to disclose to the NMPRC, the FERC or other
regulatory body, and (iv) as may be necessary or desirable to
enforce such party's rights hereunder.
(ix) The Board shall not distribute the stenographic record of the
proceedings to the parties unless an action as may be
permitted under the Rules and the New Mexico Uniform
Arbitration Act challenging the arbitration proceedings is
filed no later than sixty (60) days following the issuance of
the award. If no such action is timely filed, all copies of
the stenographic record shall be destroyed.
(x) ANY CHALLENGE TO ANY REQUEST FOR ARBITRATION OR ARBITRATION
PROCEEDING HEREUNDER SHALL BE LITIGATED, IF AT ALL, IN AND
BEFORE A STATE OR FEDERAL COURT LOCATED IN BERNALILLO COUNTY,
NEW MEXICO, TO THE EXCLUSION OF THE COURTS OF ANY OTHER STATE
OR COUNTY.
(xi) Any obligation to arbitrate which is established by this
Section shall survive any termination of this Agreement for
the notice period stipulated in Section 13.3(ii) hereof, it
being understood and agreed between the parties that any
dispute, controversy or claim arising out of or related to
this Agreement, or the breach thereof, that is not notified
within such time-frame shall be deemed conclusively waived.
13.4 Consents Not Obtained. To the extent that Seller is unable to
obtain a third party consent to transfer any lease, Contract or other interest
constituting a part of the Assets and consequently does not assign, transfer or
sublease such Assets to Buyer, Seller shall, at Buyer's written request
delivered within a reasonable time after Closing, use its reasonable efforts to
make all benefits of such non-assigned interests available to Buyer without any
administrative cost to Buyer, but shall not be obligated to incur any cost or
expense after the Closing Date with respect to such Assets, all of which shall
be for the account of Buyer.
13.5 Navopache Arrangement. The parties recognize that the Navopache
Assets are to be transferred to Buyer as a result of the selection by Navopache
Electric Cooperative, Inc. ("Navopache") of Buyer as its power supplier. The
parties also recognize that it will be necessary for the RUS to release Plains
from its All-Requirements Contract with Navopache, and that Navopache likewise
will need to be released by all necessary parties from such All-Requirements
Contract. The parties also recognize that it will be necessary for transmission
agreements identified on Exhibit 1.1 (vii) to be assigned to Buyer and that
other transmission arrangements will need to be made between Buyer and
Navopache. Finally, the parties recognize that it will also be necessary for the
FERC to approve the new power supply contract between Buyer and Navopache. In
order to make provision for the supply of power to Navopache following the
effective date of the Merger in the event that all conditions to the
effectiveness of the new power supply contract between Buyer and Navopache have
not been satisfied on or prior to the effective date of the Merger, and to make
other transition arrangements, the parties agree to enter into the Navopache
Transition Agreement identified on Exhibit 4.2 attached hereto.
22
13.6 Headquarters Building. Buyer shall, if required by Seller, lease
the Headquarters Facility to Seller for a period not exceeding sixty (60) days
after the Closing Date, at a nominal fee of Thirty Dollars ($30.00) per day. In
addition, Seller shall have the right to occupy mutually-agreed upon space
within the Headquarters Facility for as long as reasonably required to operate
the electrical power system and relocate the computers and Supervisory Control
and Data Acquisition system in a safe and orderly manner. Moreover, Seller shall
have the right to use the outlying buildings and facilities at the Headquarters
Facility for a period of 150 days after the Closing Date until the operations
and maintenance functions can be relocated. Buyer's wholesale marketing
department will occupy the control center facilities no later than thirty (30)
days after the Closing Date.
13.7 Rights-of-Way Renewals. Notwithstanding Section 13.4 hereof,
Seller will promptly reimburse Buyer for fifty percent (50%) of the costs
incurred by Buyer to obtain the renewal (for a period not to extend beyond 2020)
of any rights-of-way on the West Mesa-Belen transmission line and the
Ojo-▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇-Algodones-West Mesa 115-kV transmission path. Buyer shall
at all times keep Seller fully apprised of the status of the renewal
negotiations and shall consult with Seller with respect to such negotiations. In
return for its reimbursement with respect to the Ojo-West Mesa transmission
path, Seller and Buyer agree to use good faith efforts to negotiate an equitable
credit for Seller against Seller's network service charges from Buyer, with such
credit to be agreed before any request for reimbursement with respect to such
path is made. Notwithstanding the foregoing: (i) with respect to the West
Mesa-Belen rights-of-way, any reimbursements by Seller shall be returned to
Seller to the extent Buyer places these costs in its filed transmission tariff;
and (ii) with respect to the Ojo-West Mesa rights-of-way, Buyer shall have the
right, at its sole discretion, to fund more than its fifty percent (50%) share
of the costs of the right-of-way renewals, thereby reducing or eliminating
Seller's credit.
23
ARTICLE XIV.
MISCELLANEOUS
-------------
14.1 Notices. Any notice or approval required or permitted under this
Agreement shall be in writing and shall be sent by registered or certified mail,
postage prepaid, or by facsimile, to the following address or to any other
address designated by prior written notice:
If to Buyer:
Public Service Company of New Mexico
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Secretary
If to Seller:
Tri-State Generation and Transmission Association, Inc.
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: General Manager
14.2 Governing Law. This Agreement shall be governed in all respects by
the laws of the State of New Mexico, excluding its conflict of laws rules.
14.3 Modification/Waiver. This Agreement may not be amended, modified
or waived except by a writing signed by an authorized representative of each
party and may not be amended except as approved by the RUS. No waiver of or any
failure or omission to enforce any provision of this Agreement or any claim or
right arising hereunder shall be deemed to be a waiver of any other provision of
this Agreement or any other claim or right arising hereunder.
14.4 Assignment. Neither party may assign, delegate or otherwise
transfer its rights, obligations or other interest in this Agreement without the
prior written consent of both the other party (which consent may be withheld at
such other party's sole discretion) and the RUS.
14.5 No Brokers. Seller represents and warrants to Buyer that Seller
has not directly or indirectly employed any broker or finder to whom Buyer shall
have any liability in connection with this Agreement or the transactions
contemplated by this Agreement; and Buyer represents and warrants to Seller that
Buyer has not directly or indirectly employed any broker or finder to whom
Seller shall have any liability in connection with this Agreement or the
transactions contemplated by this Agreement.
14.6 Public Announcements. Prior to the Closing Date, neither Seller
nor Buyer shall make written announcements or other written public disclosures
or issue press releases relating to the content of this Agreement or the
transactions contemplated hereby without the prior written approval of the other
party to this Agreement to the form and content of the release or disclosure,
24
which approval shall not be unreasonably withheld. Notwithstanding the
foregoing, each party shall be entitled to disclose such information without
limitation (i) to its affiliates, members, attorneys, financial or lending
institutions, outside auditors and insurers, (ii) as may be required by law or
by regulation or order of Governmental Authority or by the rules of any stock
exchange applicable to such party or its affiliates, or as part of such party's
good faith attempt to comply with disclosure obligations under any of the same,
(iii) as each party may deem necessary or desirable to disclose in connection
with obtaining regulatory approvals, (iv) to the extent necessary for such party
to obtain third-party consents, and (v) as may be necessary or desirable to
enforce such party's rights hereunder.
14.7 Severability. If any provision of this Agreement is declared
illegal, invalid or otherwise unenforceable, such provision shall be deemed
severed, with the remaining provisions of this Agreement being deemed to remain
in full force and effect.
14.8 Paragraph Headings. Article and paragraph headings herein are
intended for convenience of reference only, and shall not in any way limit,
define, amplify or otherwise affect the interpretation of any term of this
Agreement.
14.9 Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one agreement binding
on each of the parties.
14.10 Entire Agreement. Except for the Confidentiality Agreement
referred to in Section 12.2, this Agreement (including the Exhibits and
Schedules attached hereto and referred to herein) constitutes the complete
agreement between the parties relating to the subject matter of this Agreement
and supersedes all prior understandings or arrangements between them relating to
the subject matter hereof.
25
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the day and year first above written.
PUBLIC SERVICE COMPANY
OF NEW MEXICO
By: ________________________
Its: ________________________
TRI-STATE GENERATION AND
TRANSMISSION ASSOCIATION, INC.
By: ________________________
Its: ________________________
▇▇
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ) ss
) ss
COUNTY OF BERNALILLO ) ss
This instrument was acknowledged before me on _____________________,
1999 by ________________, as ____________________ of PUBLIC SERVICE COMPANY OF
NEW MEXICO, a New Mexico corporation, on behalf of the corporation.
Notary Public in and for the State of New Mexico
My Commission expires: ___________________
STATE OF COLORADO ) ss
) ss
COUNTY OF ) ss
This instrument was acknowledged before me on ______________, 1999 by
_______________, as _____________________ of TRI-STATE GENERATION AND
TRANSMISSION ASSOCIATION, INC., a Colorado cooperative association, on behalf of
the cooperative association.
Notary Public in and for the State of Colorado
My Commission expires: ___________________
27
Exhibits
Exhibit 1.1(i) - Generating Assets
Exhibit 1.1(ii) - Transmission Assets
Exhibit 1.1(iii) - Substations
Exhibit 1.1(iv) - Telecommunications Assets
Exhibit 1.1(v) - Headquarters Facility
Exhibit 1.1(vi) - Personal Property
Exhibit 1.1(vii) - Contracts
Exhibit 1.1(ix) - Navopache Assets
Exhibit 2.1 - Methodology to Adjust Purchase Price
Exhibit 4.2 - Operations Agreements
Exhibit 5.1(xvii) - Existing Arrangements
Exhibit 10.1(i)(c)-1 - Certificate of Officer (Incumbency)
Exhibit 10.1(i)(c)-2 - Certificate of Officer (Bring-Down)
EXHIBIT 1.1(i)
--------------
GENERATING ASSETS
A fifty percent (50%) undivided interest in the Algodones Generating
Station (the "Station") and all related common facilities (FASA 310.010,
311.000, 312.100, 312.200, 312.300, 312.400, 314.100, 314.200, 314.300, 314.400,
315.200, 315.300, 315.400, 315.500, 316.00), subject to an option agreement as
hereinafter described.
Seller will have the right to acquire a 5 acre tract of unimproved real
property at the Station, the specific boundaries of which will be mutually
agreed by the parties. Seller's acquisition of such tract would be for the
purposes of constructing operations and maintenance facilities and for other
purposes ancillary thereto. Surveying of such 5 acre tract shall be at the
expense of Seller. Consideration to Buyer for the exercise of the option will be
$60,000, escalated from the Closing Date in accordance with the GDP Implicit
Price Deflator. The option will expire at the time either party, or both
parties, elect to develop the Station for its intended original purposes, or if
the parties agree to sell the site. The initial determination of the site
location will be shown in the Algodones Generating Station Participation
Agreement. The parties will enter into an option agreement embodying the
foregoing and other customary terms and conditions.
EXHIBIT 1.1(ii)
---------------
TRANSMISSION ASSETS
Undivided
Interest
Transmission Asset To Buyer
------------------ ---------
Poles and Fixtures
------------------
1. Albuquerque (West Mesa) - Algodones (FASA 355.030) 100%
2. Algodones - Espanola (▇▇▇▇▇▇▇▇▇) (FASA 355.040) 100%
3. Ojo - Espanola (▇▇▇▇▇▇▇▇▇) (FASA 355.150) 100%
4. Albuquerque (West Mesa) - Grants (FASA 355.010) 100%
5. Grants - Bluewater portion of Grants - Gallup (15.54% of
FASA 355.020) 100%
6. Bluewater - Ambrosia (FASA 355.100) 100%
7. Algodones - ▇▇▇▇▇▇▇▇ (FASA 355.110) 100%
8. ▇▇▇▇▇▇▇▇ - ▇▇▇▇▇▇▇ (FASA 355.120) 100%
9. ▇▇▇▇▇ - ▇▇▇▇▇▇▇ (FASA 355.240) 100%
10. Albuquerque (West Mesa) - Belen portion of Albuquerque
(West Mesa) - ▇▇▇▇▇▇▇ (46.71% of FASA 355.190) 100%
Overhead Conductor and Devices
1. Albuquerque (West Mesa) - Algodones (FASA 356.030) 100%
2. Algodones - Espanola (▇▇▇▇▇▇▇▇▇) (FASA 356.040) 100%
3. Ojo - Espanola (▇▇▇▇▇▇▇▇▇) (FASA 356.150) 100%
4. Albuquerque (West Mesa) - Grants (FASA 356.010) 100%
5. Grants - Bluewater portion of Grants - Gallup (15.54% of
FASA 356.020) 100%
6. Bluewater - Ambrosia (FASA 356.100) 100%
7. Algodones - ▇▇▇▇▇▇▇▇ (FASA 356.110) 100%
8. ▇▇▇▇▇▇▇▇ - ▇▇▇▇▇▇▇ (FASA 356.120) 100%
9. ▇▇▇▇▇ - ▇▇▇▇▇▇▇ (FASA 356.240) 100%
10. Albuquerque (West Mesa) - Belen portion of Albuquerque (West Mesa) 100%
- ▇▇▇▇▇▇▇ (46.71% of FASA 356.190)
EXHIBIT 1.1(iii)
SUBSTATIONS
Undivided
Interest
Substation Assets To Buyer
----------------- --------
Station Equipment
-----------------
1. Albuquerque (West Mesa) - A&B Bays (FASA 353.010) 100%
2. Albuquerque (West Mesa) - C Bay (FASA 353.030) 100%
3. Albuquerque (West Mesa) - D Bay (FASA 353.040) 100%
4. Algodones Switching Station (FASA 353.080) 100%
5. Belen Switching Station (FASA 353.100) 100%
6. Ojo Switching Station (345-kV, 115-kV, and Autotransformer) 100%
(FASA 353.130)
7. Rio Rancho Switching Station (Palm Station) (FASA 353.120) 100%
8. Rio Rancho Tap (FASA 353.160) 100%
EXHIBIT 1.1(iv)
TELECOMMUNICATION ASSETS
Undivided
Interest
Telecommunications Assets with Real Property Interests To Buyer
------------------------------------------------------ ---------
1. Sandia Crest Communications Site (FASA 397.030) 50% of building
33% of the tower
2. Albuquerque (West Mesa) Communications Site (FASA 397.020) 100%
3. Belen Communications Site (FASA - To Be Determined) 100%
Telecommunications Equipment Without Real Property Interests
------------------------------------------------------------
1. The Belen Switch radio terminal and associated antenna, transmission
line and ancillary equipment located at the ▇▇▇▇▇▇▇ Mountain
Communications Site (10% of FASA 397.150) (real property not included).
2. The ▇▇▇▇▇▇▇▇ radio terminal and associated antenna, transmission line
and ancillary equipment located at the ▇▇ ▇▇▇▇▇ Communications Site (9%
of FASA 397.050) (real property not included).
EXHIBIT 1.1(v)
--------------
HEADQUARTERS FACILITY
All of Seller's right, title and interest in and to the real property on which
the headquarters facility (at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇.▇., ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ 87107) is
located, together with the Headquarters Facility and all other buildings and
improvements located thereon (FASA 390.000 and 389.010).
EXHIBIT 1.1(vi)
---------------
PERSONAL PROPERTY
1. Office Furniture, Equipment and other Personal Property - FASA 391.010,
391.020, 391.030, 393.000.
2. Spare parts, materials and supplies located at the substations and critical
spare parts, materials and supplies associated with the purchased
transmission assets. An inventory of these items will be mutually conducted
by Buyer and Seller and mutual price agreed upon.
EXHIBIT 1.1(vii)
----------------
CONTRACTS
1. Power Coordination Agreement dated April 23, 1980, between Plains and
Arizona Public Service Company, as amended, including service schedules.
2. Interconnection and Wheeling Agreement dated April 23, 1980, between Plains
and Salt River Project Agricultural Improvement and Power District, as
amended.
3. Service and supply contracts supporting the operations of the Headquarters
Facility, to the extent Buyer chooses to assume the same. (Seller will
supply a list of such contracts promptly after the Signing Date).
EXHIBIT 1.1(ix)
NAVOPACHE ASSETS
Undivided Interest
Asset to Buyer
----- ------------------
Substation Equipment
--------------------
1. Coronado (FASA 362.380 and 25% of FASA 303.100) 100%
2. Showlow (FASA 362.400 and FASA 303.200) 100%
3. Linden 100%
4. Zeniff 100%
Telecommunications Facilities
-----------------------------
1. ▇▇▇▇▇▇▇▇ Communications Site (FASA 397.310) 100%
2. Greens Peak Communications Equipment (FASA 397.300) 100%
3. Coronado Communications Equipment (included in Substation 100%
Account 362.380.0011)
4. Linden Communications Site (FASA 397.440) 100%
5. Showlow Communications Site (FASA 397.290) 100%
6. Zeniff Communications Site (FASA 397.450) 100%
EXHIBIT 2.1
METHODOLOGY TO ADJUST PURCHASE PRICE
The following methodology will be used to adjust the Purchase Price from that
stated in Section 2.1, which is based on December 31, 1997 financial
information. Reasonable supporting documentation will be provided by Seller to
allow substantiation of such adjustments by Buyer.
1. Transmission and Telecommunication Assets other than
Ojo-▇▇▇▇▇▇▇▇-▇▇▇▇▇▇-Algodones-West Mesa 115kv line facilities, Algodones
and West Mesa Station facilities. (Relates to the following FASA or share
of FASA as appropriate: 355.010, 355.020, 355.100, 355.110, 355,120,
355.240, 355.190, 356.010, 356.020, 356.100, 356.110, 356.120, 356.240,
356.190, 353.100, 353.130, 353.120, 353.160, 397.030, 397.020, 397.150,
397.050.):
12/31/97 Value per Plains account and records ..........
Additions (Itemized) ...................................
Reductions (itemized) ..................................
Value as of the Closing Date ...........................
2. Other Assets other than Algodones (Relates to the following FASA or
share of FASA as appropriate: 390.000, 389.010, 391.010, 391.020, 391.030,
393.000.):
12/31/97 Value per Plains account and records ..........
Additions (Itemized) ...................................
Reductions (itemized) ..................................
Value as of the Closing Date ...........................
3. Ojo-▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇-Algodones-West Mesa 115kv line facilities,
Algodones and West Mesa Switching Facilities.
Ojo-▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇-Algodones-West Mesa 115kv line,
poles and conductors-12/31/97 value (FASA 355.030,
355.040, 355.150, 356.030, 356.040, 356.150)............
Algodones Switching Station
---------------------------
1/2 of Algodones Switching Station- (FASA 353.080)
12/31/97 value .......................................
1/2 of Algodones Switching Station- (FASA 353.080)
12/31/97 Value per Plains account and records ..........
1/2 Additions (Itemized) ...............................
1/2 Reductions (itemized) ..............................
Value as of the Closing Date ...........................
Total Algodones Switching Station.......................
West Mesa Switching Station
---------------------------
West Mesa ( A and B ) Facility (FASA 353.010)-
12/31/97 value .....................................
West Mesa C and D Station Facilities- (FASA
353.030, 353.040)
12/31/97 Value per Plains account and records .........
Additions (Itemized) ..................................
Reductions (itemized) .................................
Value as of the Closing Date ..........................
Total West Mesa Switching Station.....................
4. Algodones Generation Facilities
(FASA 310.010, 311.000, 312.100, 312.200,
312.300, 314.100, 315.200, 315.300, 315.400,315.500,
316.000) 12/31/97 value)...............................
5. Premium
Algodones:..................................... $860,000.00
Transmission:.................................$4,337,653.00
6. Navopache Assets other than FASA 303.100
12/31/97 Value per Plains account and records .........
Additions (Itemized) ..................................
Reductions (Itemized) .................................
Value as of the Closing Date ..........................
7. Navopache Assets FASA 303.100
12/31/97 Value per Plains account and records .........
Additions (Itemized) ..................................
Reductions (Itemized) .................................
Value as of the Closing Date ..........................
PNM payment = 25% Value as of Closing Date.............
EXHIBIT 4.2
-----------
OPERATIONS AGREEMENTS
1. Algodones Participation Agreement
---------------------------------
Under the provisions of this contract, Buyer will operate and maintain the
Algodones Generating Station that is jointly owned by Seller and Buyer and is
currently an idle plant. This contract will cover the power plant only.
2. Marketing Agreement (and Related Transmission Arrangements)
-----------------------------------------------------------
This contract will describe the arrangements for Buyer's marketing of power from
Seller's PEGS and San ▇▇▇▇ Generating Station entitlement which is surplus to
the needs of Seller's member cooperatives. Seller will make a request to PNM for
point-to-point transmission service between PEGS and Four Corners within 30 days
of Signing Date.
3. Seller Power Sales Agreement
----------------------------
This contract will define the terms and conditions of a 50-MW firm power sale
from Seller to Buyer that is part of the modified joint offer between Seller and
Buyer. This contract will be effective by the time Buyer commences power sales
to Navopache.
4. Telecommunications Sharing Agreement
------------------------------------
Seller and Buyer will share communications facilities and channels under this
agreement. The agreement will assign maintenance and replacement responsibility
for shared facilities.
5. Network Integration Transmission Service (Network Service) Agreement
----------------------------------------------------------------------
and associated specification sheets (Buyer Service for Seller)
------------------------------------
Network service will be provided by Buyer to Seller under Buyer's Open Access
Transmission Tariff that will provide transmission service for Seller loads that
are served on or through Buyer's transmission system.
6. Navopache Transition Agreement
------------------------------
This contract among Seller, Buyer, Navopache and Plains will provide transition
arrangements, including the arrangements and conditions for service to Navopache
in the event FERC approval or acceptance for filing for Buyer's service to
Navopache has not been obtained, or other conditions have not been satisfied, by
the time of the Merger closing. This contract will be effective upon the Merger
closing.
7. Joint Transmission Planning and Development Agreement
-----------------------------------------------------
This agreement will provide for joint planning and development activities
between Seller and Buyer in the former Plains service area. The agreement will
include provisions for first right of refusal in facility improvements and
rights to interconnect.
8. Transmission Service Agreement (Seller Service for Buyer)
------------------------------
This contract will be a bilateral transmission service contract that provides
for the use of Seller's system to serve isolated Buyer load that is connected to
the Seller system.
9. Network Operating Agreement
---------------------------
This agreement will set forth terms and conditions to be employed by Seller and
Buyer to coordinate the Buyer and Seller system operations.
10. Bus License Agreement
---------------------
This license agreement will provide Buyer with rights through Seller's
substations where transmission lines acquired by Buyer are attached to Seller's
substations. Additionally, Buyer will provide Seller with rights through Buyer's
Mimbres Substation.
11. Algodones Five Acre Option Agreement
------------------------------------
This agreement will include the terms for Seller's option to purchase a 5 acre
tract at the Algodones Generating Station as described on Exhibit 1.1(i).
EXHIBIT 5.1(xvii)
-----------------
EXISTING ARRANGEMENTS
Description Disposition
----------- -----------
1. Plains/PNM Interconnection Agreement Tri-State will assume this agreement as the successor to Plains.
2. Memorandum (Coordination Agreement) Terminate. Incorporate planning coordination provisions into new
Tri-State/PNM Network Operating Agreement
3. Service Schedule A (Wheeling Service for ▇▇▇▇▇ Lake Terminate. Tri-State to provide PNM service under a bilateral
and ▇▇▇▇▇▇▇) agreement. PNM to provide ▇▇▇▇▇▇▇) service to Tri-State under
the PNM OATT.
4. Service Schedule C. (Wheeling Service for Rio Rancho, Terminate. Each party has agreed in principle that no credit or
Gulf, and Mimbres) compensation is due.
5. Letter Agreement - 8/7/91 (NNMI/SNMI Operating Terminate. Agreement is no longer effective.
Relationship)
6. Service Schedule E (Reciprocal Use Facilities and Terminate. Each party has agreed that no credit or compensation
Balance of Benefits) is due.
7. Ambrosia Switchyard Expansion - 7/8/82 Terminate.
8. Service Schedule F (Economy Energy Interchange and WSPP) Terminate. Incorporate provisions in new Tri-State/PNM
Marketing Agreement.
9. Service Schedule G (Master Transmission Agreement) Terminate. Tri-State to receive network service from PNM.
10. Letter Agreement - 7/19/1994 (Temporary Scheduling Termination occurs when network service begins.
Arrangements)
11. Service Schedule H (Reciprocal Wheeling Service) Terminate. Tri-State to develop bi-lateral transmission agreement
for PNM and Tri-State to receive service from PNM under Tariff.
12. Service Schedule J (Hazard Sharing) Tri-State to assume as the successor to Plains.
13. Mutual Emergency Transmission Assistance Tri-State to assume as the successor to Plains.
Agreement (1971)
14. Service Schedule K (▇▇▇▇▇▇▇ Transmission Service) Terminate. Tri-State to develop bi-lateral transmission
agreement for PNM.
15. Letter of Understanding, Clapham Substation Terminate.
16. Transmission Service Agreement to ▇▇▇▇ Terminate. Include ▇▇▇▇ as a Point of Delivery.
17. Agreement to Wheel Power (San ▇▇▇▇ to Ojo) Terminate. Include Ojo as a Point of Delivery.
Description Disposition
----------- -----------
18. Ojo 345/115-kV Transformer Losses Terminate.
19. Assistance in PNM Rebuild Alternative Terminate. No longer in force or effect.
20. Northern Transmission Project - 3/23/1990 Terminate. No longer in force or effect.
21. Norton Switching Station Agreement - 12/13/1972 Terminate. PNM will own the former Plains transmission lines.
22. Letter Agreement - West Mesa Transformer Operations Terminate. Operating limits of West Mesa Transformer to be
handled through Network Operating Agreement.
23. Miscellaneous Operating Procedures, E&O Letter Incorporate into the PNM/Tri-State Network Operating Agreement.
Agreements, and System Operating Limits Terminate only those no longer applicable.
24. Natural Gas Sales Agreement - ▇▇▇▇▇▇▇▇▇ Plant Tri-State to assume as the successor to Plains.
(Contract No. GS 20257)
25. Contract of Sale - 4/4/79 Terminate.
EXHIBIT 10.1(i)(c)-1
--------------------
CERTIFICATE OF OFFICER
(INCUMBENCY)
I, _________________________________, hereby certify to, as follows:
1. I am the Secretary of _____________________ organized and existing
under the laws of the State of _____________________ (this "Corporation").
2. The [Articles] [Certificate] of Incorporation attached hereto as
Attachment 1 and the Bylaws attached hereto as Attachment 2 are, respectively,
true, complete and correct copies of the [Articles] [Certificate] of
Incorporation and Bylaws of this Corporation which [Articles] [Certificate] and
Bylaws this Corporation has duly adopted and are presently in full force and
effect.
3. Attached hereto as Attachment 3 is a true, complete and correct copy
of Resolutions which the Board of Directors of this Corporation has duly
adopted, and said Resolutions are now in full force and effect.
4. The Board of Directors of this Corporation has, and at the time it
adopted the Resolutions described in Paragraph 3 above had full power and lawful
authority to adopt such Resolutions and to confer the powers therein granted to
the persons named therein or referred to therein by title, and such persons have
full power and authority to exercise the same. The signatures appearing below
are the true, authentic and official signatures of the persons referred to in
such Resolutions:
Name Title Sample Signature
---- ----- ----------------
_______________________ ________________________ _________________________
_______________________ ________________________ _________________________
5. The Resolutions referred to in Paragraph 3 are effective and binding
on this Corporation without approval of its [members] [shareholders].
Dated as of ________________, 1999.
By: ____________________________
____________________________, Secretary
EXHIBIT 10.1(i)(c)-2
--------------------
CERTIFICATE OF OFFICER
(BRING-DOWN)
I, _______________________, hereby certify to ____________________, as
follows:
1. I am the Secretary of _______________________, a ___________________
organized and existing under the laws of the State of _______________ (this
"Corporation").
2. Except as set forth on the attached Disclosure Schedule (updated,
subject to the limitations in Section 9.1 or 9.2 (as applicable) relating to the
Disclosure Schedules, through the date hereof), all of the representations and
warranties of this Corporation set forth in Section of the Asset Sale Agreement
between this Corporation and _________________________________ dated as of
________________, 1999 (the "Asset Sale Agreement"), are correct and complete in
all material respects on and as of the date hereof as though made on the date
hereof.
3. This Corporation [and Plains Electric Generation and Transmission
Cooperative, Inc. ("Plains")] [has] [have] performed and complied with all other
agreements and conditions required by the Asset Sale Agreement to be performed
by and complied with by this Corporation [and Plains] on or before the date
hereof.
Dated as of _________________, 1999.
______________________________________________
By: ____________________________
____________________________, Secretary
