AMENDMENT ▇▇. ▇
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PURCHASE AND PARTICIPATION AGREEMENT
Between
Public Service Company of New Mexico
and
Utah Associated Municipal Power Systems
1.0 PARTIES
This Amendment No. 1 to the Restated and Amended San ▇▇▇▇ Unit 4
Purchase and Participation Agreement ("Amendment No. 1") 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 UTAH ASSOCIATED MUNICIPAL POWER
SYSTEMS, a political subdivision of the State of Utah ("UAMPS"), hereinafter
sometimes referred to individually as a "Party" or collectively as the
"Parties."
2.0 RECITALS
This Amendment No. 1 is made with reference to the following facts,
among others:
2.1 The Restated and Amended San ▇▇▇▇ Unit 4 Purchase and Participation
Agreement (the "PPA") was entered into by the Parties as of May 27, 1993. The
PPA governs the purchase by UAMPS of a 7.028 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
Public Power Agency ("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, for the purpose of complying with the federal Clean Air Act
Amendments of 1990; the DR Agreement was thereafter accepted by 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 UAMPS, 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
UAMPS 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 UAMPS 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 PPA to harmonize the PPA 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. 1, the Parties
hereby agree as follows:
3.0 TERM AND TERMINATION
3.1 This Amendment No. 1 shall become effective as of the date on which
the Participation Agreement becomes effective.
3.2 Sections 1.1, 1.2 and 1.3 of the PPA are amended to read in their
entirety as follows:
1.1 This Agreement shall become effective on the Effective Date
and shall, unless terminated earlier by the Parties, remain in
effect until July 1, 2022; provided, however, that if the term of
the San ▇▇▇▇ Project Participation Agreement, dated as of
________________, 1999 (the "Participation Agreement") is extended,
the term of this Agreement shall be extended, without further
action of the Parties, so that the terms of this Agreement and of
the Participation Agreement shall be coterminous.
3.3 Section 1.4 is renumbered as Section 1.2.
4.0 CHANGES IN REFERENCES TO CO-TENANCY AGREEMENT
AND OPERATING AGREEMENT
4.1 Section 7 of the PPA is hereby amended to read in its entirety as
follows:
7.1 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.
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7.2 PNM/UAMPS Relationship. The relationship between PNM and
UAMPS with respect to Unit 4 shall be governed by this Agreement
and the Interconnection Agreement. As between PNM and UAMPS, where
a specific provision of this Agreement is in conflict with a
provision in one or more of the San ▇▇▇▇ Project Agreements, the
provisions of this Agreement shall govern.
4.2 Except as otherwise provided herein, the Participation Agreement
shall be applicable to all aspects of UAMPS' ownership interest in San ▇▇▇▇ Unit
4.
5.0 FINANCING
5.1 Section 8.2 of the PPA is hereby deleted in its entirety.
6.0 PNM AS OPERATING AGENT
6.1 Section 10 of the PPA is hereby amended to read in its entirety as
follows:
10.1 UAMPS recognizes that PNM is the Operating Agent, as that
term is defined in Section 5.31 of the Participation Agreement.
10.2 PNM's responsibilities as Operating Agent to UAMPS are
described in Section 28 of the Participation Agreement.
7.0 APPLICABILITY OF CERTAIN PROVISIONS OF CO-TENANCY AGREEMENT
7.1 Section 11 of the PPA is hereby deleted in its entirety.
8.0 ENTITLEMENT TO AND SCHEDULING OF POWER AND ENERGY 8.1 Section 12 of the
PPA is hereby deleted in its entirety.
9.0 START-UP AND AUXILIARY POWER
9.1 Section 13 of the PPA is hereby amended to read in its entirety as
follows:
13.1 The provisions of this Section 13 shall apply after the
Closing Date. 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 UAMPS' supply of start-up and
auxiliary power and energy shall be made in accordance with
procedures established by the Operating Committee, as that term is
defined in Section 7 of the Interconnection Agreement.
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10.0 CAPITAL BETTERMENTS, ADDITIONS AND REPLACEMENTS
10.1 Section 14 of the PPA is hereby deleted in its entirety.
11.0 DEFAULTS
11.1 Sections 19.5, 19.6 and 19.7 of the PPA are hereby deleted in
their entirety.
12.0 DISPUTES; ARBITRATION
12.1 Section 20 of the PPA is hereby amended to read in its entirety as
follows:
20.1 In the event that a dispute between the Parties should
arise under this Agreement, such dispute shall be first submitted
to the PNM and UAMPS 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 Chairman of the Board of
Directors of UAMPS, 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.
13.0 DESTRUCTION, DAMAGE OR CONDEMNATION OF SAN ▇▇▇▇ UNIT 4
13.1 Section 22 of the PPA is hereby deleted in its entirety.
14.0 RELATIONSHIP OF THE PARTIES
14.1 Section 24.2 of the PPA is hereby deleted in its entirety.
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15.0 ASSIGNMENT, TRANSFER, CONVEYANCE OR OTHER DISPOSITION
15.1 Section 29.2 of the PPA is hereby amended to read in its entirety
as follows:
29.2 Except as otherwise specifically provided in this Section
29, should UAMPS desire to assign, transfer, convey or otherwise
dispose of ("Assign") the Transfer Interest to any person, company,
corporation, governmental agency or other entity other than PNM (an
"Outside Party"), PNM shall have a right of first refusal to
purchase the Transfer Interest. Such right shall be exercised in
accordance with the terms and conditions and the procedures set out
in Section 11 of the Participation Agreement.
15.2 Sections 29.3, 29.4, 29.5, 29.6, 29.7, 29.8 and 29.9 of the PPA
are hereby deleted in their entirety.
15.3 Section 29.10 of PPA is hereby renumbered as Section 29.3, and is
amended to read in its entirety as follows:
29.3 UAMPS shall have a right of first refusal with respect to
any sale, transfer or other disposition of all or any part of any
interest of PNM in Unit 4 (the "PNM Transfer Interest") by PNM.
UAMPS shall have no right of first refusal with respect to any
sale, transfer or other disposition by any party of any part of or
interest in ▇▇▇▇ ▇, ▇▇▇▇ ▇ or Unit 3; or in any such sale, transfer
or other disposition of any part of or interest in Unit 4 by a
party other than PNM; provided further that the right of first
refusal granted herein to UAMPS shall be subordinate to any rights
of first refusal previously granted to other parties with respect
to Unit 4. Such right of first refusal shall commence on the
Closing Date, shall continue for the term of this Agreement and
shall be exercised in accordance with the terms and conditions and
the procedures set out in Section 11 of the Participation
Agreement.
15.4 Sections 29.11, 29.12, 29.13, 29.14, 29.15, 29.16 and 29.17 of the
PPA are hereby deleted in their entirety.
16.0 NOTICES
16.1 Section 30.1.2 of the PPA is hereby revised to read in its
entirety as follows:
30.1.2 Utah Associated Municipal Power Systems
c/o General Manager
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17.0 CONTINUATION IN EFFECT
17.1 Except as herein modified, all provisions of the PPA are unchanged
and continue in full force and effect.
IN WITNESS WHEREOF, the Parties have caused this Amendment No. 1 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
UTAH ASSOCIATED MUNICIPAL POWER
SYSTEMS
By:
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Chairman, Board of Directors
[SEAL]
ATTEST:
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Secretary
73200
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