Common use of INTERCOMPANY TRANSFERS AND SETTLEMENT OF INTERCOMPANY DEBT Clause in Contracts

INTERCOMPANY TRANSFERS AND SETTLEMENT OF INTERCOMPANY DEBT. At any time between the date hereof and the Cut Off Date, Westar may (a) pay cash to Western as provided in Section 3.2(a)(i) of the Merger Agreement for the purposes and subject to the limits provided therein and (b) convert any outstanding amount of the Intercompany Receivable as provided in Section 3.2(a)(ii) of the Merger Agreement. provided any remaining balance of the Intercompany Receivable that has not been converted on or before the Merger Effective Time shall be so converted at the Effective Time, and Westar shall provide written notice to Western of its choice of conversion options on or prior to the Cut Off Date. In addition, Western may pay cash to Westar as provided in Section 3.2(a)(ii) of the Merger Agreement for the purposes and subject to the limits provided therein. In order to either (A) convert the Intercompany Receivable (in whole or in part pursuant to Section 3.2(a)(i) of the Merger Agreement), or (B) purchase securities pursuant to Section 3.2(a)(ii) of the Merger Agreement, Westar shall deliver to Western with a copy to PNM by facsimile a notice ("Purchase Notice") at least five Business Days prior to the applicable Purchase Date specified in the Purchase Notice, specifying (i) the amount of the Intercompany Receivable to be converted or cash to be advanced; (ii) the class of securities to be purchased; (iii) the applicable Purchase Price and (iv) the applicable Purchase Date. Western and PNM shall have the opportunity to review and comment on such Purchase Notice. Such Purchase Notice shall also be immediately forwarded to Western by overnight courier or hand delivery. Except as set forth below, the Purchase Notice and election once given shall be irrevocable. If Western agrees with the calculation of the Purchase Price in the Purchase Notice, Western shall issue and deliver to Westar, or its designee, within three Business Days after the applicable Purchase Date, a certificate or certificates for the number and class of shares of Stock to which Westar shall be entitled as aforesaid. If Western in good faith disputes the calculation of the Purchase Price or the number of shares issuable pursuant to such Purchase Notice, Western shall give written notice of any such objection to Westar within two Business Days of receipt of the Purchase Notice, and the parties shall attempt in good faith to resolve such dispute prior to the specified Purchase Date. If such dispute is not resolved prior to the Purchase Date, the parties shall refer the matter to a nationally recognized accounting firm selected by Westar and reasonably acceptable to Western, the decision of which shall be final and binding on Western and Westar. Westar acknowledges and agrees that regulatory approval for the issuance of Convertible Preference Stock may be required prior to the initial issuance of Convertible Preference Stock, and Western agrees to use commercially reasonable efforts to obtain such regulatory approval. If after delivery by Westar of a Purchase Notice notifying Western of Westar's election to purchase Convertible Preference Stock conversion of all or part of the Intercompany Receivable, a regulatory authority of competent jurisdiction prohibits Western from issuing Convertible Preference Stock, or any such regulatory authority conditions its approval on a change in the terms of such security, Westar may revoke its Purchase Notice with respect to such Convertible Preference Stock. No fractional shares of Stock or scrip representing fractional shares of any Stock shall be issuable hereunder. The number of shares of Stock that are issuable upon any conversion shall be rounded up or down to the nearest whole share.

INTERCOMPANY TRANSFERS AND SETTLEMENT OF INTERCOMPANY DEBT. At any time between After the date hereof and until the earlier of the Cut Off Date, Date or the secured debt of Western's electric utility operations receiving an investment grade rating from Xxxxx'x and Standard & Poor's Westar may shall (a) pay cash to Western the net cash proceeds of any sale by Westar of its ownership interest in ONEOK, Inc. and Western Resources, whether presently owned or hereafter acquired (including common stock or preference stock of Western Resources issued to Westar after the date hereof as a result of the conversion of the Intercompany Receivable as provided herein), (b) pay to Western the net cash proceeds of any borrowings by Westar secured by a pledge of or security interest in Section 3.2(a)(i) any of the Merger Agreement assets described in the foregoing clause (a), and (c) pay to Western the net cash proceeds of the Rights Offering. All such payments shall be for the purposes and subject to the limits provided therein in Section 3.2(a)(i) of the Merger Agreement, or to acquire indebtedness of Western. Net cash proceeds as used herein shall mean cash proceeds of a sale transaction received by Westar after deduction of expenses, commission, etc., tax payments for local, federal or state entities, and (b) any debt owed on the asset sold. Westar may convert any outstanding amount of the Intercompany Receivable as provided in Section 3.2(a)(ii) of the Merger Agreement. , provided any remaining balance of the Intercompany Receivable that has not been converted on or before the Merger Effective Time shall be so converted at the Effective Time, and Westar shall provide written notice to Western of its choice of conversion options on or prior to the Cut Off Date. In addition, Western may pay cash to shall use all proceeds received from Westar as provided in Section 3.2(a)(iiabove or from the exercise by Westar of its rights under the Westar Option to reduce or minimize its debt. This amendment may be terminated if (x) of the Merger Agreement for Kansas Corporation Commission (the purposes and subject "Commission") issues an order with respect to the limits provided therein. In order to either (A) convert restructuring of Western's assets, debt or the Intercompany Receivable (in whole or in part pursuant to matters covered by this Section 3.2(a)(i) of the Merger Agreement)2.02 which is inconsistent with this amendment, or (By) purchase securities pursuant to Section 3.2(a)(ii) of the Merger Agreement, Westar shall deliver to Western with a copy to PNM by facsimile a notice Commission staff (the "Purchase NoticeStaff") at least five Business Days on its own or others initiate a docket with respect to the restructuring of Western's assets, debt or the matters covered by this Section 2.02 which is inconsistent with this amendment and which causes the Rights Offering to be terminated prior to the applicable Purchase Date specified in successful completion of said Rights Offering or Western and Westar do not issue the Purchase Notice, specifying (i) rights contemplated by the amount Rights Offering or the Rights Offering is not successfully completed. This amendment may also be terminated if after successful completion of the Intercompany Receivable to be converted or cash to be advanced; (ii) the class of securities to be purchased; (iii) the applicable Purchase Price and (iv) the applicable Purchase Date. Western and PNM shall have the opportunity to review and comment on such Purchase Notice. Such Purchase Notice shall also be immediately forwarded to Western by overnight courier or hand delivery. Except as set forth belowRights Offering, the Purchase Notice and election once given shall be irrevocableKansas Corporation Commission issues an Order or Orders attempting to set aside or materially alter this Agreement or the Rights Offering. If Western agrees with the calculation of the Purchase Price in the Purchase Noticethis amendment is terminated, Western shall issue and deliver to Westar, or its designee, within three Business Days after the applicable Purchase Date, a certificate or certificates for the number and class of shares of Stock to which Westar shall be entitled as aforesaid. If Western in good faith disputes the calculation of the Purchase Price or the number of shares issuable pursuant to such Purchase Notice, Western shall give written notice of any such objection to Westar within two Business Days of receipt of the Purchase Notice, and the parties shall attempt in good faith to resolve such dispute prior to the specified Purchase Date. If such dispute is not resolved prior to the Purchase Date, the parties shall refer the matter to a nationally recognized accounting firm selected by Westar and reasonably acceptable to Western, the decision of which shall be final and binding on Western and Westar. Westar acknowledges and agrees that regulatory approval for the issuance of Convertible Preference Stock may be required prior to the initial issuance of Convertible Preference Stock, and Western agrees to use commercially reasonable efforts to obtain such regulatory approval. If after delivery by Westar of a Purchase Notice notifying Western of Westar's election to purchase Convertible Preference Stock conversion of all or part of the Intercompany Receivable, a regulatory authority of competent jurisdiction prohibits Western from issuing Convertible Preference Stock, or any such regulatory authority conditions its approval on a change in the terms of such security, Westar may revoke its Purchase Notice with respect this Section 2.02 as in effect prior to such Convertible Preference Stock. No fractional shares of Stock or scrip representing fractional shares of any Stock this amendment shall automatically be issuable hereunder. The number of shares of Stock that are issuable upon any conversion shall reinstated and be rounded up or down to the nearest whole sharein full force and effect.