AMENDMENT ▇▇. ▇
▇▇ ▇▇▇
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EARLY PURCHASE AND PARTICIPATION AGREEMENT
Between
Public Service Company of New Mexico
and
M-S-R Public Power Agency
1.0 PARTIES
This Amendment No. 3 to the San ▇▇▇▇ Unit 4 Early Purchase and
Participation Agreement ("Amendment No. 3") is made and entered into this 27th
day of October 1999, by and between PUBLIC SERVICE COMPANY OF NEW MEXICO, a New
Mexico corporation ("PNM") and M-S-R PUBLIC POWER AGENCY, a joint exercise of
powers agency organized under the laws of the State of California ("M-S-R"),
hereinafter sometimes referred to individually as a "Party" or collectively as
the "Parties."
2.0 RECITALS
This Amendment No. 3 is made with reference to the following facts,
among others:
2.1 The San ▇▇▇▇ Unit 4 Early Purchase and Participation Agreement was
entered into by the Parties as of September 26, 1983, and was amended on
December 16, 1987, and on October 31, 1989, (collectively, as thus amended, the
"EPPA"). The EPPA governs the purchase by M-S-R of a 28.8 percent undivided
ownership interest in San ▇▇▇▇ Unit 4 and associated common facilities, supplies
and inventories and the operation thereof by PNM as Operating Agent of the San
▇▇▇▇ Project.
2.2 PNM and Tucson Electric Power Company ("TEP") only are parties to
the San ▇▇▇▇ Project Co-Tenancy Agreement (the "Co-Tenancy Agreement") and the
San ▇▇▇▇ Project Operating Agreement (the "Operating Agreement").
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2.3 The Co-Tenancy Agreement and the Operating Agreement have been
previously amended by action of PNM and TEP, through and including Amendments
Number 10 to the Co-Tenancy Agreement and the Operating Agreement.
2.4 The San ▇▇▇▇ Project Construction Agreement was terminated in 1995
by action of PNM and TEP.
2.5 PNM, TEP, Century Power Company, Southern California Public Power
Authority ("SCPPA"), the City of Farmington, New Mexico ("Farmington"), M-S-R,
the Incorporated County of Los Alamos, New Mexico ("Los Alamos") and the City of
Anaheim, California ("Anaheim") entered into the San ▇▇▇▇ Project Designated
Representative Agreement ("DR Agreement") as of April 29, 1994, to implement the
requirements of the federal Clean Air Act Amendments of 1990; the DR Agreement
was thereafter accepted by Utah Associated Municipal Power Systems ("UAMPS") and
Tri-State Generation and Transmission Association, Inc. ("Tri-State") at the
time of their respective purchases of ownership interests in the San ▇▇▇▇
Project.
2.6 The owners of the San ▇▇▇▇ Project, including PNM and M-S-R, have
negotiated a San ▇▇▇▇ Project Participation Agreement among PNM, TEP,
Farmington, M-S-R, Los Alamos, SCPPA, Anaheim, UAMPS and Tri-State (the
"Participation Agreement") to amend, restate and replace in their entirety the
Co-Tenancy Agreement and the Operating Agreement and to set out in one
instrument all of the matters previously included in the Co-Tenancy Agreement
and the Operating Agreement.
2.7 The Participation Agreement will, upon its effective date, provide
M-S-R with all the rights, privileges and obligations of a "Participant," as
that term is defined in the Participation Agreement, and is intended to
supersede the rights, privileges and obligations of M-S-R as a "Unit
Participant," as that term is defined in the Operating Agreement.
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2.8 The Parties desire to amend the EPPA to harmonize the EPPA with the
Participation Agreement.
NOW, THEREFORE, based on the foregoing recitals and in consideration of
the mutual promises, terms and covenants of this Amendment No. 3, the Parties
hereby agree as follows:
3.0 TERM AND TERMINATION
3.1 This Amendment No. 3 shall become effective as of the date on which
the Participation Agreement becomes effective.
3.2 Section 1.2 of the EPPA is amended to read in its entirety as
follows:
This Agreement shall continue in full force and effect
from its Effective Date until the termination date of
the San ▇▇▇▇ Project Participation Agreement, dated as
of _____________, 1999 (the "Participation Agreement").
4.0 CHANGES IN REFERENCES TO CO-TENANCY AGREEMENT
AND OPERATING AGREEMENT
4.1 Section 5 of the EPPA is hereby amended to read in its entirety as
follows:
5.1 Participation Agreement. Except as otherwise
provided in this Agreement, the rights and obligations
of the Parties with respect to the San ▇▇▇▇ Project are
as set forth in the Participation Agreement. Any
reference in this Agreement to any provision of the San
▇▇▇▇ Project Agreements shall be deemed to be a
reference to the corresponding or successor provision
of the Participation Agreement.
4.2 Exhibit A-1 to the EPPA, Definitional Cross-References, is hereby
deleted in its entirety.
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4.3 The phrase "PNM, as the Project Manager as that term is defined in
Section 5.41 of the Operating Agreement," as used in Section 24.1.1 of the EPPA,
is hereby deleted in its entirety and replaced with the following phrase: "PNM."
4.4 Except as otherwise provided herein, the Participation Agreement
shall be applicable to all aspects of M-S-R's ownership interest in San ▇▇▇▇
Unit 4.
5.0 VOTING
5.1 Section 9.4 of the EPPA is hereby deleted in its entirety.
6.0 PNM COOPERATION
6.1 Section 11.7 of the EPPA is hereby deleted in its entirety.
7.0 PNM AS OPERATING AGENT
7.1 Section 12 of the EPPA is hereby amended to read in its entirety as
follows:
12.1 M-S-R recognizes that PNM is the Operating Agent, as that
term is defined in Section 5.31 of the Participation Agreement, as
of the effective date of the Participation Agreement.
12.2 PNM's responsibilities as Operating Agent to M-S-R are
described in Section 28 of the Participation Agreement.
8.0 APPLICABILITY OF CERTAIN PROVISIONS OF CO-TENANCY AGREEMENT
8.1 Section 13 of the EPPA is hereby deleted in its entirety.
9.0 ENTITLEMENT TO AND SCHEDULING OF POWER AND ENERGY 9.1 Section 14 of the
EPPA is hereby deleted in its entirety.
10.0 START-UP AND AUXILIARY POWER
10.1 Section 15 of the EPPA, entitled "Start-up and Auxiliary Power and
Energy Requirement," is hereby amended to read as follows:
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15.1 Each Party shall be obligated to provide its share of
start-up and auxiliary power and energy in proportion to its
Participation Share in San ▇▇▇▇ Unit 4 as provided in Section 17 of
the Participation Agreement. Any supplementary arrangements which
may be required to facilitate M-S-R's supply of start-up and
auxiliary power and energy shall be made in accordance with
procedures established by the Interconnection Committee, as that
term is defined in Section 7 of the Interconnection Agreement.
11.0 CAPITAL BETTERMENTS, ADDITIONS AND REPLACEMENTS
11.1 Section 16 of the EPPA is hereby deleted in its entirety.
12.0 DEFAULTS
12.1 All references to "the prime lending rate established and last
published or quoted by Irving Trust Company" in Sections 21.3 and 21.4 of the
EPPA are replaced by "ten percent (10%) per annum."
12.2 Section 21.5 and Section 21.6 of the EPPA are hereby deleted in
their entirety.
13.0 DISPUTES; ARBITRATION
13.1 Section 22 of the EPPA is hereby amended to read in its entirety
as follows:
22.1 In the event that a dispute between the Parties should
arise under this Agreement, such dispute shall be first submitted
to the PNM and M-S-R members on the Engineering and Operating
Committee for resolution. In the event these members are unable to
resolve such dispute within ninety (90) days after submission, the
dispute shall be referred in writing to the President or a Vice
President designated by PNM and the General Manager of M-S-R, or
his or her designee. If such dispute has not been resolved within
thirty (30) days after the referral made by either Party (unless
such thirty (30) day period is extended by mutual agreement of the
Parties), either Party may thereafter call for submission of such
dispute to arbitration in the manner set forth in Section 37 of the
Participation Agreement, which call shall be binding upon the
Parties, except that the notices required under Section 37.1 of the
Participation Agreement shall only be provided to the Parties to
this Agreement unless the dispute between the Parties to this
Agreement affects the interests of other parties to the
Participation Agreement.
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14.0 DESTRUCTION, DAMAGE OR CONDEMNATION OF SAN ▇▇▇▇ UNIT 4
14.1 Section 26 of the EPPA is hereby deleted in its entirety.
15.0 ASSIGNMENT, TRANSFER, CONVEYANCE OR OTHER DISPOSITION
15.1 Section 33 of the EPPA is hereby amended by deleting Sections
33.1, 33.1.1, 33.1.2, 33.1.3, 33.1.4, 33.1.5 and 33.1.6. In place of such
deleted sections, new Sections 33.1 and 33.1.1 are added, to read as follows:
33.1 In any assignment, transfer, conveyance or other
disposition of their respective interests under this Agreement,
or in San ▇▇▇▇ Unit 4, PNM and M-S-R shall have the following
rights and obligations:
33.1.1 Except as provided in Section 10 of the
Participation Agreement and subject to the provisions of Sections
33.1.2 and 33.1.3 of this Agreement, should either Party desire
to assign, transfer, convey or otherwise dispose of ("Assign")
any portion of or all of its rights, titles and interests in San
▇▇▇▇ Unit 4, or any portion or all of its rights, titles and
interests in, to and under this Agreement, or any portion or all
of its rights, titles and interests in the fuel or water rights,
lands or the improvements thereon or any part thereof or interest
therein ("Transfer Interest"), to any person, company,
corporation or government agency ("Outside Party"), the remaining
Party shall have the right of first refusal to purchase such
Transfer Interest in accordance with the terms and conditions and
the procedures set out in Section 11 of the Participation
Agreement.
15.2 Section 33.1.7 of the EPPA is renumbered as Section 33.1.2 and
Section 33.1.8 of the EPPA is renumbered as Section 33.1.3; and all internal
references within this Agreement to Sections 33.1.7 and 33.1.8 shall be deemed
to refer to renumbered Sections 33.1.2 and 33.1.3.
16.0 CONTINUATION IN EFFECT
16.1 Except as herein modified, all provisions of the EPPA are
unchanged and continue in full force and effect.
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IN WITNESS WHEREOF, the Parties have caused this Amendment No. 3 to be
executed by their duly authorized representatives as of the date set forth
above.
PUBLIC SERVICE COMPANY OF NEW MEXICO
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President, Power Production
M-S-R PUBLIC POWER AGENCY
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
General Manager
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