PURCHASE AND SALE AGREEMENT by and between DUKE ENERGY NORTH AMERICA, LLC, as Seller, and PNM RESOURCES, INC., PHELPS DODGE ENERGY SERVICES, LLC and TUCSON ELECTRIC POWER COMPANY, as Purchasers dated as of November 12, 2004 DEMING ENERGY FACILITY Luna...
EXECUTION VERSION
EXHIBIT 10.5
by and between
DUKE ENERGY NORTH AMERICA, LLC,
as Seller,
and
PNM RESOURCES, INC.,
XXXXXX DODGE ENERGY SERVICES, LLC
and
TUCSON ELECTRIC POWER COMPANY,
as Purchasers
dated as of November 12, 2004
DEMING ENERGY FACILITY
Xxxx County, New Mexico
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
1.1 |
Definitions |
1 |
1.2 |
Construction |
7 |
ARTICLE II
PURCHASE AND SALE AND CLOSING
2.1 |
Purchase and Sale |
7 |
2.2 |
Purchase Price |
7 |
2.3 |
Closing |
8 |
2.4 |
Closing Deliveries by Seller |
8 |
2.5 |
Closing Deliveries by Purchasers |
8 |
2.6 |
Allocation of Purchase Price |
9 |
ARTICLE III
REPRESENTATIONS AND
WARRANTIES REGARDING SELLER
3.1 |
Organization, Standing and Power |
9 |
3.2 |
Authority |
9 |
3.3 |
No Conflicts |
10 |
3.4 |
Capitalization |
10 |
3.5 |
Legal Proceedings |
10 |
3.6 |
Compliance with Laws and Orders |
10 |
3.7 |
Brokers |
10 |
3.8 |
Bankruptcy |
10 |
ARTICLE IV
REPRESENTATIONS AND
WARRANTIES REGARDING THE COMPANY
4.1 |
Organization, Standing and Power |
11 |
4.2 |
No Conflicts |
11 |
4.3 |
Capitalization |
11 |
4.4 |
Business |
12 |
4.5 |
Subsidiaries |
12 |
4.6 |
Legal Proceedings |
12 |
4.7 |
Compliance with Laws and Orders |
12 |
4.8 |
No Undisclosed Liabilities |
12 |
4.9 |
Taxes |
12 |
4.10 |
Investment Company Act |
13 |
4.11 |
Contracts |
13 |
4.12 |
Real Property |
13 |
4.13 |
Personal Property |
13 |
4.14 |
Permits |
13 |
4.15 |
Environmental Matters |
13 |
4.16 |
Employees |
14 |
4.17 |
Brokers |
14 |
4.18 |
Bankruptcy |
14 |
TABLE OF CONTENTS
(continued)
ARTICLE V
REPRESENTATIONS AND
WARRANTIES OF PURCHASERS
5.1 |
Organization, Standing and Power |
15 |
5.2 |
Authority |
15 |
5.3 |
No Conflicts |
15 |
5.4 |
Legal Proceedings |
16 |
5.5 |
Compliance with Laws and Orders |
16 |
5.6 |
Brokers |
16 |
5.7 |
Acquisition as Investment |
16 |
5.8 |
Bankruptcy |
16 |
5.9 |
No Knowledge of Seller's Breach |
16 |
ARTICLE VI
COVENANTS
6.1 |
Construction Documents |
17 |
6.2 |
Use of Certain Names |
17 |
6.3 |
Excluded Items |
17 |
6.4 |
Further Assurances |
17 |
6.5 |
Accounting Settlement |
18 |
ARTICLE VII
TAX MATTERS
7.1 |
Preparation and Filing of Tax Returns |
18 |
7.2 |
Access to Information |
20 |
7.3 |
Indemnification by Seller |
20 |
7.4 |
Purchaser Tax Indemnification |
21 |
7.5 |
Tax Indemnification Procedures |
21 |
7.6 |
Conflict |
22 |
7.7 |
Transfer Taxes |
22 |
7.8 |
Termination of Project Bonds |
22 |
ARTICLE VIII
INDEMNIFICATION, LIMITATIONS OF LIABILITY, WAIVERS AND DISPUTE
RESOLUTION
8.1 |
Indemnification |
22 |
8.2 |
Limitations of Liability |
23 |
8.3 |
Limited Claim Period |
24 |
8.4 |
Waiver of Other Representations |
24 |
8.5 |
Waiver of Remedies |
24 |
8.6 |
Dispute Resolution |
25 |
8.7 |
Procedure for Indemnification - Third-Party Claims |
25 |
TABLE OF CONTENTS
(continued)
ARTICLE IX
MISCELLANEOUS
9.1 |
Notices |
26 |
9.2 |
Entire Agreement |
28 |
9.3 |
Expenses |
28 |
9.4 |
Public Announcements |
28 |
9.5 |
Confidential Information |
28 |
9.6 |
Disclosure |
29 |
9.7 |
Waiver |
29 |
9.8 |
Amendment |
29 |
9.9 |
No Third Party Beneficiary |
29 |
9.10 |
Assignment; Binding Effect |
30 |
9.11 |
Headings |
30 |
9.12 |
Invalid Provisions |
30 |
9.13 |
Counterparts; Facsimile |
30 |
9.14 |
Governing Law; Venue; and Jurisdiction |
30 |
9.15 |
Attorneys' Fees |
31 |
TABLE OF CONTENTS
(continued)
SCHEDULES
Part 1.1(a) - Persons
with Knowledge
Part 1.1(b) - Easements,
Licenses and Rights-of-Way
Part 1.1(c) - Description
of Permitted Liens
Part 1.1(d) - Description
of Purchased Assets
Part 1.1(e) - Description
of Power Plant Site
Part 1.1(f) - Description
of Wellfield Sites
Part 2.6 - Purchase
Price Allocation Schedule
Part 4.9 - Taxes
Part 4.11 - Material
Contracts
Part 4.5 - Subsidiaries
Part 4.14(a) - Permits
Part 6.3 - Excluded
Items
Deming Energy Facility
THIS PURCHASE AND SALE AGREEMENT dated as of November 12, 2004 is made and entered into by and between DUKE ENERGY NORTH AMERICA, LLC, a limited liability company formed under the Laws of the State of Delaware ("Seller"), and PNM RESOURCES, INC., a New Mexico corporation ("PNMR"), XXXXXX DODGE ENERGY SERVICES, LLC, a Delaware limited liability company ("PDES"), and TUCSON ELECTRIC POWER COMPANY, an Arizona corporation ("TEP"; each of PNMR, PDES and TEP individually a "Purchaser," and collectively the "Purchasers").
RECITALS
A. Seller is the sole member of, and owns 100% of the membership interests (the "Company Interests") of, Duke Energy Xxxx, LLC, a limited liability company formed under the Laws of the State of Delaware (the "Company").
B. The Company owns a partially constructed approximately 570 MW (nominal) combined cycle natural gas-fired merchant power plant located in Xxxx County, New Mexico sometimes referred to as the Deming Energy Facility.
C. Seller desires to sell to each Purchaser, and each Purchaser desires to purchase from Seller, 33-1/3% of the Company Interests on the terms and subject to the conditions set forth herein.
STATEMENT OF AGREEMENT
Now, therefore, in consideration of the premises and the mutual representations, warranties, covenants and agreements set forth in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
ARTICLE I
DEFINITIONS
1.1 Definitions. Capitalized terms used in this Agreement have the meanings given to them in this Section 1.1.
"1933 Act" has the meaning given to it in Section 5.7.
"Affiliate" means any Person that directly, or indirectly through one or more intermediaries, controls, is controlled by or is under common control with the Person specified. For purposes of this definition, control of a Person means the power, direct or indirect, to direct or cause the direction of the management and policies of such Person whether through ownership of voting securities or ownership interests, by contract or otherwise, and specifically with respect to a corporation, partnership or limited liability company, means direct or indirect ownership of more than 50% of the voting securities in such corporation or of the voting interest in a partnership or limited liability company.
"Agreement" means this Purchase and Sale Agreement, as it may hereafter be amended in accordance with its terms.
"Assets" of any Person means all assets and properties of every kind, nature, character and description (whether real, personal or mixed, whether tangible or intangible and wherever situated), including the goodwill related thereto, owned or leased by such Person.
"Business" means the development, construction, ownership, repair and maintenance of the Project as currently conducted by the Company.
"Business Day" means a day other than Saturday, Sunday or any day on which banks located in the State of New York, the State of Arizona and the State of New Mexico are authorized or obligated to close.
"Charter Documents" means with respect to any Person, the articles of incorporation or organization and the by-laws, the limited partnership agreement, the partnership agreement or the limited liability company agreement, or such other organizational documents of such Person, including those that are required to be registered or kept in the place of incorporation, organization or formation of such Person and which establish the legal personality of such Person.
"Claim" means any demand, claim, action, investigation, legal proceeding (whether at law or in equity) or arbitration, whether or not ultimately determined to be valid.
"Closing" means the closing of the transactions contemplated by this Agreement, as provided for in Section 2.3.
"Closing Date" means the date on which Closing occurs.
"Code" means the Internal Revenue Code of 1986, as amended.
"Company" has the meaning given to it in the recitals.
"Company Interests" has the meaning given to it in the recitals.
"Contract" means any written or oral contract, lease, license, evidence of indebtedness, mortgage, indenture, purchase order, binding bid, letter of credit, security agreement or other written or oral and legally binding arrangement.
"DECT" means Duke Energy Capital of Texas, Inc., a Delaware corporation.
"Easements" means the easements, licenses and rights-of-way granted to the Company that are appurtenant to the Power Plant Site, as further described in Part 1.1(b) of the Schedules.
"Environmental Claim" means any claim, loss, cost, expense, liability, penalty or damage arising out of or related to any violation of Environmental Law.
"Environmental Law" means the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9601 et seq.; the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq.; the Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq.; the Clean Air Act, 42 U.S.C. § 7401 et seq.; the Hazardous Materials Transportation Act, 49 U.S.C. § 1471 et seq.; the Toxic Substances Control Act, 15 U.S.C. §§ 2601 through 2629; the Oil Pollution Act, 33 U.S.C. § 2701 et seq.; the Emergency Planning and Community Xxxxx-xx-Xxxx Xxx, 00 X.X.X. § 00000 et seq.; the Safe Drinking Water Act, 42 U.S.C. §§ 300f through 300j; and all similar Laws (including Laws of the State of New Mexico) of any Governmental Authority having jurisdiction over the assets in question addressing pollution (including Hazardous Materials and Releases) or protection of the environment and cultural and historic resources, and all amendments to such Laws and all regulations implementing any of the foregoing. The term "Environmental Law" does not include any changes in Laws occurring after the Closing Date.
"Excluded Items" has the meaning given to it in Section 6.3.
"GAAP" means generally accepted accounting principles in the United States of America applied on a consistent basis.
"Governmental Authority" means any court, tribunal, arbitrator, authority, agency, commission, official or other instrumentality of the United States or any state, county, city, tribal authority or other political subdivision or similar governing entity, and including any governmental, quasi-governmental or non-governmental body.
"Hazardous Material" means and includes each substance designated as a hazardous waste, hazardous substance, hazardous material, pollutant, contaminant or toxic substance under any Environmental Law and any petroleum or petroleum products that have been Released into the environment.
"Indemnified Party" has the meaning given to it in Section 8.7(a).
"Indemnifying Party" has the meaning given to it in Section 8.7(a).
"Indenture" means that certain Indenture among City of Deming, New Mexico, DECT, and Wachovia Bank, National Association (f/k/a First Union National Bank) dated as of July 1, 2001.
"Knowledge" means the actual knowledge (as opposed to any constructive or imputed knowledge), (i) with respect to Seller, of the individuals listed on Section A of Part 1.1(a) of the Schedules, and (ii) with respect to Purchasers, of the individuals listed in Section B of Part 1.1(a) of the Schedules.
"Laws" means all laws, statutes, rules, regulations, opinions, orders, ordinances and other pronouncements or promulgations of any Governmental Authority having the effect of law or otherwise binding on a Person.
"Lien" means any mortgage, pledge, assessment, security interest, lien or other encumbrance of any kind.
"LLC Agreement" means the Limited Liability Company Agreement of the Company dated May 9, 2000, as the same may be amended from time to time.
"Loss" means any and all judgments, losses, liabilities, amounts paid in settlement, damages, fines, penalties, deficiencies, losses and expenses (including interest, court costs, reasonable fees of attorneys, accountants and other experts or other reasonable expenses of litigation or other proceedings or of any claim, default or assessment), but only to the extent such losses are not compensated by receipt of payment from some third party or by the proceeds of insurance or otherwise recovered from third parties and are net of any associated benefits arising in connection with such loss, including any associated Tax benefits.
"Material Contract" or "Material Contracts" has the meaning given to it in Section 4.11.
"Non-Company Affiliate" means any Affiliate of Seller, except for the Company.
"Parties" means each Purchaser and Seller.
"Permits" means all licenses, permits, certificates of authority, authorizations, approvals, acceptances for filing, registrations, franchises and similar consents granted by a Governmental Authority.
"Permitted Lien" means (a) any Lien for Taxes not yet due or delinquent or being contested in good faith by appropriate proceedings; (b) any Lien arising in the ordinary course of business by operation of Law with respect to a liability that is not yet due or delinquent or which is being contested in good faith by Seller or the Company; (c) all matters that are disclosed in the title policies insuring the Power Plant Site or the Wellfield Sites or that would be revealed by a current survey; (d) imperfections or irregularities of title and other Liens that would not, individually or in the aggregate, reasonably be expected to result in a cost to remedy that exceeds the amount of $500,000; (e) zoning, planning, and other similar limitations and restrictions, all rights of any Governmental Authority to regulate the Real Property, and all matters of record; and (f) the matters identified in Part 1.1(c) of the Schedules.
"Person" means any natural person, corporation, general partnership, limited partnership, limited liability company, proprietorship, other business organization, trust, union, association or Governmental Authority.
"Post-Closing Tax Period" means any taxable period beginning after the Closing or with respect to any taxable period that begins on or before the Closing and ends after the Closing, the portion of such taxable period after the Closing.
"Power Plant Site" means the real property located in Xxxx County, New Mexico, approximately two miles northwest of Deming, New Mexico, as further described in Part 1.1(e) of the Schedules.
"Pre-Closing Tax Period" means any taxable period ending on or before the Closing or with respect to any taxable period that begins on or before the Closing and ends after the Closing, the portion of such taxable period ending on the Closing.
"Project" means a nominally rated approximately 570 megawatt natural gas-fired combined cycle electric generating plant located on the Real Property, as conceived, designed, engineered and partially constructed by the Company as of the Closing Date and generally described in Part 1.1(d) of the Schedules, and more particularly described in the specifications set forth as Part A of Exhibit B to the terminated construction contract between the Company and Duke/Fluor Xxxxxx, entitled "Scope of Work," true and complete copies of which specifications have been delivered to Purchasers.
"Project Bonds" means those certain City of Deming, New Mexico Taxable Industrial Revenue Bonds (Duke Energy Xxxx, LLC Project) Series 2001, issued by the City of Xxxxxx pursuant to a Bond Purchase Agreement, dated as of July 1, 2001, among the City of Xxxxxx, the Company, and DECT and related documents, including the Indenture.
"Purchase Price" has the meaning given to it in Section 2.2.
"Purchase Price Allocation Schedule" has the meaning given to it in Section 2.6.
"Purchased Assets" means the Assets of the Company generally described in Part 1.1(d) of the Schedules.
"Purchaser" or "Purchasers" has the meaning given to it in the introduction to this Agreement.
"Purchaser Deductible Amount" has the meaning given to it in Section 8.2(c).
"Purchaser Related Persons" has the meaning given to it in Section 8.1(a).
"Real Property" means the Power Plant Site, the Wellfield Sites and the Easements.
"Release" means any release, spill, emission, migration, leaking, pumping, injection, deposit, disposal or discharge of any Hazardous Materials into the environment, to the extent prohibited, or otherwise requiring removal or remediation, under applicable Environmental Laws.
"Representatives" means, as to any Person, its officers, directors, employees, agents, counsel, accountants, financial advisers or consultants.
"Schedules" means the disclosure schedules prepared by Seller or Purchasers, as applicable, and attached to this Agreement.
"Seller" has the meaning given to it in the introduction to this Agreement.
"Seller Deductible Amount" has the meaning given to it in Section 8.2(b).
"Seller Group" means the affiliated group of corporations of which Seller is the common parent, which join in the filing of a consolidated federal income tax return (and any similar group under state law).
"Seller Marks" has the meaning given to it in Section 6.2.
"Seller Related Persons" has the meaning given to it in Section 8.1(b).
"Solvent" means, with respect to any Person on a particular date, that on such date (a) the fair value of the property of such Person is greater than the total amount of liabilities, including contingent liabilities, of such Person, (b) such Person is able to meet its obligations as those obligations mature, and (c) such Person is not engaged in business or a transaction for which such Person's property would constitute an unreasonably small capital. The amount of contingent liabilities at any time shall be computed as the amount that, in the light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.
"Tax" or "Taxes" means any federal, state, local or foreign income, gross receipts and compensating, ad valorem, sales and use, employment, social security, disability, occupation, property, severance, value added, transfer, capital stock, excise or other taxes imposed by or on behalf of any Taxing Authority or payment made in lieu thereof, including any interest, penalty or addition thereto.
"Tax Indemnified Claim" has the meaning given to it in Section 7.5.
"Tax Indemnified Party" has the meaning given to it in Section 7.5.
"Tax Indemnifying Party" has the meaning given to it in Section 7.5.
"Tax Items" has the meaning given to it in Section 7.1(a).
"Tax Return" means any return, declaration, report, exhibits, schedules, information return or statement and other documentation (including any additional or supporting material, attachment, amendment or supplement thereto) filed or maintained, or required to be filed or maintained, in connection with the calculation, determination, assessment or collection of any Tax and shall include any amended return or claim for refund.
"Taxing Authority" means, with respect to any Tax, the governmental entity or political subdivision thereof that imposes such Tax, and the agency (if any) charged with the collection of such Tax for such entity or subdivision.
"Transfer Taxes" means all transfer, sales, use, goods and services, value added, documentary, stamp duty, gross receipts, excise, transfer and conveyance Taxes and other similar Taxes, duties, fees or charges, including any interest, penalty or addition thereto, and excluding ad valorem or property Taxes or Taxes in lieu of the same.
"Wellfield Sites" means the real property described on Part 1.1(f) of the Schedules.
ARTICLE II
PURCHASE AND SALE AND CLOSING
2.1 Purchase and Sale. On the terms and subject to the conditions set forth in this Agreement, and by execution and delivery of the Assignments of Limited Liability Company Membership Interests simultaneously herewith, each Purchaser hereby purchases from Seller, and Seller hereby sells to each Purchaser, thirty three and one-third percent (33-1/3%) of the Company Interests, free and clear of all Liens.
2.2 Purchase Price. Each Purchaser hereby pays, or causes to be paid, to Seller, in cash, the sum of $13,333,333.33 in consideration of its respective 33-1/3% Company Interest being purchased, for an aggregate purchase price of $40,000,000.00 (the "Purchase Price") for all of the Company Interests.
2.3 Closing. The Closing is occurring at the offices of Xxxxxxx & XxXxxx, P.A., Albuquerque, New Mexico at 10:00 A.M. local time on November 12, 2004. The Closing shall be effective as of 12:01 a.m. on the Closing Date, and all actions scheduled in this Agreement for the Closing Date shall be deemed to occur simultaneously at such time.
2.4 Closing Deliveries by Seller. Seller is delivering, or is causing to be delivered, to Purchasers the following:
(b) copies of release and cancellation instruments, evidencing the cancellation of the Project Bonds and the release of the Company from the Indenture and any liabilities associated therewith;
(c) copies of termination documentation evidencing the termination of the Lease Agreement, dated as of July 1, 2001, between the City of Xxxxxx and the Company, together with appropriate reconveyance instruments evidencing the reconveyance of title to the Project from the City of Xxxxxx to the Company, and any other related documents;
(d) a Transition Consulting Services Agreement;
(e) a certificate of an officer of Seller, dated as of the Closing Date, setting forth and attesting to (i) the resolutions of the board of managers of Seller authorizing the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby; and (ii) the incumbency and signature of the officer of Seller executing this Agreement;
(h) the resignations of the managers and officers of the Company; and
(i) one or more opinions of legal counsel to Seller as to certain customary matters, collectively in form and substance reasonably satisfactory to Purchasers.
2.5 Closing Deliveries by Purchasers. Each Purchaser is delivering, or is causing to be delivered, to Seller the following:
(b) a Transition Consulting Services Agreement;
(c) copies of all documents or instruments effecting the full and unconditional release of Duke Capital LLC under that certain Guaranty to the Benefit of General Electric International, Inc. dated December 9, 2002;
(e) one or more opinions of legal counsel to each Purchaser as to certain customary matters, collectively in form and substance reasonably satisfactory to Seller.
2.6 Allocation of Purchase Price. Seller and Purchasers agree that the Purchase Price shall be allocated among the Purchased Assets in accordance with the allocation schedule (the "Purchase Price Allocation Schedule") set forth on Part 2.6 of the Schedules. Seller and Purchasers shall prepare mutually acceptable and substantially identical IRS Form 8594 "Asset Acquisition Statements Under Section 1060" consistent with the Purchase Price Allocation Schedule which the Parties shall use to report the transactions contemplated by this Agreement to the applicable Taxing Authorities. Seller and each Purchaser agree to provide the other promptly with any other information required to complete Form 8594.
ARTICLE III
REPRESENTATIONS AND WARRANTIES REGARDING SELLER
Seller hereby represents and warrants to Purchasers that, except as disclosed in the Schedules:
3.1 Organization, Standing and Power. Seller is a limited liability company, duly organized, validly existing and in good standing under the Laws of the State of Delaware.
3.2 Authority. Seller has all requisite power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby. The execution and delivery by Seller of this Agreement, and the performance by Seller of its obligations hereunder, have been duly and validly authorized by all necessary company action. This Agreement has been duly and validly executed and delivered by Seller and constitutes the legal, valid and binding obligation of Seller enforceable against Seller in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, arrangement, moratorium or other similar Laws relating to or affecting the rights of creditors generally, or by general equitable principles.
3.3 No Conflicts. The execution and delivery by Seller of this Agreement do not, and the performance by Seller of its obligations under this Agreement will not:
(a) Seller owns 100% of the Company Interests.
3.5 Legal Proceedings. There are no actions or proceedings (including orders, judgments and writs) outstanding or pending in any court, regulatory body, Governmental Authority or, to the Seller's Knowledge, threatened by or against Seller which would be reasonably expected to result in the issuance of an order restraining, enjoining or otherwise prohibiting or making illegal the consummation of the transactions contemplated by this Agreement.
3.7 Brokers. Seller has no liability or obligation to pay fees or commissions to any broker, finder or agent with respect to the transactions contemplated by this Agreement for which any Purchaser could become liable or obligated.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES REGARDING THE COMPANY
Seller hereby represents and warrants to Purchasers that, except as disclosed in the Schedules:
4.1 Organization, Standing and Power. The Company is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware and has all requisite power and authority to conduct the Business. The Company is duly qualified or licensed to do business in the State of New Mexico and in each jurisdiction in which the Business makes such qualification or licensing necessary, except in those jurisdictions where the failure to be so duly qualified or licensed would not reasonably be expected to result in a material adverse effect on the Purchased Assets, the Business or the Company. Seller has made available to Purchaser true, correct and complete copies of the Charter Documents of the Company.
4.2 No Conflicts. The execution and delivery by Seller of this Agreement do not, and the performance by Seller of its obligations under this Agreement and the consummation of the transactions contemplated hereby will not:
(b) (i) conflict with or result in a violation or breach, in any material respect, of any term or provision of any Law or writ, judgment, order or decree applicable to the Company or any of its Assets or (ii) require the consent, approval or authorization of, or notice to or filing with, any Governmental Authority under any applicable Law; and
(a) The Company Interests represent all of the membership interests in the Company.
4.4 Business. The Business is the only business operation that has been and is carried on by the Company.
4.5 Subsidiaries. Except as described in Part 4.5 of the Schedules, the Company has not had any subsidiaries or otherwise owned equity interests in any Person. The Company does not now have any subsidiaries or otherwise own equity interests in any Person.
4.6 Legal Proceedings. There are no actions or proceedings (including orders, judgments and writs) outstanding or pending in any court, regulatory body, Governmental Authority or, to the Seller's Knowledge, threatened by or against the Company.
4.7 Compliance with Laws and Orders. To the Seller's Knowledge, the Company is, and has been at all times since the date of its formation, in compliance in all material respects with all Laws and orders applicable to it; provided that this Section 4.7 provides no representation or warranty regarding Environmental Laws, which are exclusively addressed by Sections 4.14 and 4.15.
4.8 No Undisclosed Liabilities. Except as will be repaid or extinguished on or prior to Closing pursuant to Sections 2.4(b) and (c), there are no liabilities individually or in the aggregate that would be reasonably expected to result in the Company incurring a payment obligation or other liability in excess of $100,000, but excluding (i) liabilities under the Contracts disclosed to Purchaser, (ii) liabilities under this Agreement, and (iii) liabilities under the Company's unexpired Permits listed on Part 4.14 of the Schedules.
4.9 Taxes. Except as set forth on Part 4.9 of the Schedules:
(f) The Company is not a party to or otherwise liable under any Tax sharing agreement or similar arrangement (including any indemnity arrangement).
4.10 Investment Company Act. The Company is not an "investment company," a company "controlled" by an "investment company" or an "investment advisor" within the meaning of the Investment Company Act of 1940.
4.12 Real Property. The Company has good and valid fee title to the Power Plant Site and the Wellfield Sites, in each case free and clear of all Liens other than Permitted Liens. The Company holds good and valid title to the Easements, free and clear of all Liens other than Permitted Liens.
4.13 Personal Property. The Company owns and has good title to all of the tangible and intangible personal property constituting part of the Purchased Assets, free and clear of all Liens, except for Permitted Liens.
(iii) the Company has been in compliance in all material respects with Environmental Laws; and
(iv) from the time the Company acquired or otherwise took control of the Real Property, there has been no Release of any Hazardous Material on, at or under the Real Property or at or from the Project that would result in a material Environmental Claim.
4.16 Employees. The Company does not have and never has had any employees, and no individuals are or ever have been employed by any Affiliate of the Company solely to work on matters relating to the Project (other than with regard to supervision of Project construction, preparation for operation and subsequent maintenance of laid-up equipment). No claim is pending, or to Seller's Knowledge threatened, in which any individual or Governmental Authority asserts, or in the case of any threatened claim, may assert, that any individual is or was an employee of the Company or employed by any Affiliate of the Company in respect of the Project (other than with regard to supervision of Project construction preparation for operation and subsequent maintenance of laid-up equipment). Neither Company, any Purchaser nor any of their respective Affiliates have incurred or will incur any liability under or otherwise in respect of any employee compensation or benefit plan, program, agreement or arrangement (including any employee benefit plan (within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended)) established or maintained by Seller or any other entity that together with Seller is or ever was deemed a single employer in accordance with Section 414 of the Code.
4.17 Brokers. The Company has no liability or obligation to pay fees or commissions to any broker, finder or agent with respect to the transactions contemplated by this Agreement.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF PURCHASERS
Each Purchaser, for itself but not for the other Purchasers, hereby represents and warrants to Seller as follows:
5.2 Authority. The execution and delivery by such Purchaser of this Agreement and the performance by such Purchaser of its obligations hereunder have been duly and validly authorized by all requisite corporate or company action on behalf of such Purchaser. This Agreement has been duly and validly executed and delivered by such Purchaser and constitutes the legal, valid and binding obligation of such Purchaser enforceable against such Purchaser in accordance with its terms except as enforceability may be limited by bankruptcy, insolvency, reorganization, arrangement, moratorium or other similar Laws relating to or affecting the rights of creditors generally, or by general equitable principles.
5.3 No Conflicts. The execution and delivery by such Purchaser of this Agreement, the performance by such Purchaser of its obligations hereunder and the consummation of the transactions contemplated hereby will not:
5.4 Legal Proceedings. Such Purchaser has not been served with notice of any Claim, and to such Purchaser's knowledge, none is threatened, against such Purchaser which seeks a writ, judgment, order or decree restraining, enjoining or otherwise prohibiting or making illegal any of the transactions contemplated by this Agreement.
5.5 Compliance with Laws and Orders. Such Purchaser is not in violation of or in default under any Law or order applicable to such Purchaser or its Assets the effect of which, individually or in the aggregate, could reasonably be expected to materially impair such Purchaser's ability to perform its obligations hereunder.
5.6 Brokers. Such Purchaser does not have any liability or obligation to pay fees or commissions to any broker, finder or agent with respect to the transactions contemplated by this Agreement for which Seller could become liable or obligated.
5.7 Acquisition as Investment. Such Purchaser is acquiring its share of the Company Interests for its own account as an investment without the present intent to sell, transfer or otherwise distribute such Company Interests to any other Person. Such Purchaser has made, independently and without reliance on Seller (except for such Purchaser's reliance on the representations and warranties of Seller expressly set forth in this Agreement) its own analysis of the Company Interests, the Company and the Purchased Assets for the purpose of acquiring the Company Interests and such Purchaser has had reasonable and sufficient access to documents, other information and materials as it considers appropriate to make its evaluations. Such Purchaser acknowledges that the Company Interests are not registered pursuant to the Securities Act of 1933 as amended, (the "1933 Act") and that none of the Company Interests may be transferred, except pursuant to an applicable exception under the 1933 Act. Such Purchaser is an "accredited investor" as defined under Rule 501 promulgated under the 0000 Xxx.
5.8 Bankruptcy. There are no bankruptcy, reorganization, or arrangement proceedings pending against, being contemplated by, or, to the Knowledge of such Purchaser, threatened against, such Purchaser. After giving effect to the obligations (including contingent obligations) hereunder and assuming the accuracy of the Seller's representations, warranties, covenants and agreements herein, such Purchaser is Solvent.
5.9 No Knowledge of Seller's Breach. Such Purchaser does not have Knowledge of any breach by Seller of any of the representations and warranties of Seller or the Company contained herein.
ARTICLE VI
COVENANTS
The Parties hereby covenant and agree as follows:
6.1 Construction Documents. Within 30 days following Closing, Seller shall deliver, or shall cause to be delivered, to Purchasers, to the extent not already provided to Purchasers, all construction drawings and construction documents (including studies) in the possession or control, on the Closing Date, of Seller or Company that were prepared for the construction, operation and maintenance of the Project (other than those documents withheld by Duke/Fluor Xxxxxx or Fluor Xxxxxx falling within the category of trade secrets as described in Part 6.3 of the Schedules). Notwithstanding the foregoing, the Purchasers agree that the applicable drawings and documents located at Fluor Daniel's offices shall be deemed to have been delivered to Purchasers in situ.
6.2 Use of Certain Names. Within 30 days following Closing or, if later, within 30 days following the date that Sellers deliver the materials referred to in Section 6.1 to Purchasers, each Purchaser shall cause the Company to cease using the words "XXXX," "Xxxx" and "Xxxx Energy" or any word or expression similar thereto or constituting an abbreviation or extension thereof (the "Seller Marks"), including eliminating such words from the Real Property and disposing of any unused stationery and literature of the Company bearing such words, and thereafter, no Purchaser, the Company, nor their respective Affiliates shall use any logos, trademarks, trade names, patents or other intellectual property rights belonging to Seller or any Affiliate thereof, and each Purchaser acknowledges that it has no rights whatsoever to use such intellectual property. Notwithstanding the foregoing:
(b) Within 10 Business Days after the Closing Date, Purchasers shall cause the Company to change its name to a name that does not contain "Duke Energy" or any of the other Seller Marks; provided, however, that if Purchasers have, within such 10-day period, undertaken to dissolve the Company and are in the process of winding up the affairs of the Company consistent with applicable Laws, Purchasers shall not be required to change the name of the Company.
6.3 Excluded Items. Notwithstanding anything in this Agreement to the contrary, each Purchaser acknowledges and agrees that the Company does not have title to (or, in the case of the property identified in item (z) of Part 6.3 of the Schedules, may not have title to) those Assets described on Part 6.3 of the Schedules (the "Excluded Items").
6.4 Further Assurances. Subject to the terms and conditions of this Agreement, at any time, or from time to time, after the Closing, at a Party's request and without further consideration, the other Party or Parties, as the case may be, shall execute and deliver to such Party such other instruments of sale, transfer, conveyance, assignment and confirmation, provide such materials and information and take such other actions as such Party may reasonably request in order to consummate the transactions contemplated by this Agreement.
6.5 Accounting Settlement. Prior to the Closing, Seller shall have caused all accounts receivable and all accounts payable, trade payables and other indebtedness of the Company to be transferred to Seller or a Non-Company Affiliate. After the Closing, invoices for goods purchased, or services performed, prior to the Closing Date will be for the account of Seller and invoices for goods purchased, or services performed, on and after the Closing Date shall be for the account of Purchasers. Purchasers shall have all responsibility and liability for Company's performance of its obligations and commitments arising after Closing. After the Closing, Purchasers shall promptly remit to Seller any invoices for which Seller is responsible pursuant to this Section 6.5, and Seller shall promptly pay them. After the Closing, Seller shall promptly remit to Purchasers any invoices for which Purchasers are responsible pursuant to this Section 6.5, and Purchasers shall promptly pay their pro rata share of them.
ARTICLE VII
TAX MATTERS
7.1 Preparation and Filing of Tax Returns.
(c) With respect to any Tax Return covering a taxable period beginning on or before the Closing Date and ending after the Closing Date that is required to be filed after the Closing Date with respect to the Company, Purchasers shall cause such Tax Return to be prepared in a manner consistent with practices followed in prior years, except as otherwise required by Law or fact, shall cause to be included in such Tax Return all Tax Items required to be included therein, and at least 15 days prior to the due date (including extensions) of such Tax Return shall furnish a copy of such Tax Return to Seller. Purchasers shall permit Seller to review and comment on such Tax Return and shall make such revisions to such Tax Return as reasonably requested by Seller. Purchasers and Seller shall work in good faith to agree upon the manner in which such Tax Return is prepared (including the treatment of any Tax Items on such Tax Return) and the Taxes attributable to the Pre-Closing Tax Period and, failing such agreement, shall resolve the matter in a manner consistent with the dispute resolution procedures described in Section 8.6. Not later than five days prior to the due date (including extensions) for filing such Tax Return, Seller shall deliver to Purchasers the amount of Taxes shown to be due on such Tax Return that are attributable to the Pre-Closing Tax Period. Upon receipt thereof, Purchasers shall cause the Company to timely file such Tax Return and pay all Taxes due with respect to such Tax Return.
7.3 Indemnification by Seller.
7.4 Purchaser Tax Indemnification. Purchasers agree, jointly and severally, to protect, defend, indemnify and hold harmless Seller from and against, and agree to pay (a) any Taxes of the Company attributable to the time period after the Closing, (b) any Transfer Taxes (other than such Taxes as may be payable by Seller pursuant to the first two sentences of Section 7.3(a)), (c) any Taxes resulting from the termination of the Project Bonds (d) any Taxes resulting from transactions or actions taken by Purchasers, the Company or any of their Affiliates at or after the Closing and that are not contemplated by this Agreement, or (e) any liability arising from a breach by Purchasers of their covenants set forth in this Article VII.
7.5 Tax Indemnification Procedures. If a claim shall be made by any Taxing Authority that, if successful, would result in the indemnification of a Party under this Agreement (referred to herein as the "Tax Indemnified Claim" and the "Tax Indemnified Party", respectively), the Tax Indemnified Party shall promptly notify the Party obligated under this Agreement to so indemnify (referred to herein as the "Tax Indemnifying Party") in writing of such fact.
7.6 Conflict. In the event of a conflict between the provisions of this Article VII and any other provisions of this Agreement, this Article VII shall control.
7.7 Transfer Taxes. Purchasers shall be responsible for and shall pay promptly when due all Transfer Taxes (other than such Taxes as may be payable by Seller pursuant to the first two sentences of Section 7.3(a)), resulting from the transactions contemplated by this Agreement.
ARTICLE VIII
INDEMNIFICATION, LIMITATIONS OF LIABILITY,
WAIVERS AND DISPUTE RESOLUTION
(i) Any breach of a representation or warranty made by Seller in this Agreement; and
(i) Any breach of a representation or warranty made by any Purchaser in this Agreement; and
8.2 Limitations of Liability. Notwithstanding anything to the contrary in this Agreement:
(d) in no event shall the aggregate liability of Seller or Purchasers, as the case may be, arising out of or relating to this Agreement, whether relating to breach of representation and warranty, covenant, agreement or obligation (other than Purchasers' obligation to pay the Purchase Price, which shall be limited to the Purchase Price), whether based on contract, tort, other Laws or otherwise, exceed 75% of the Purchase Price;
8.3 Limited Claim Period. No Party shall make or bring any claim for indemnification relating to or pursuant to the representations and warranties contained in Articles III, IV and V subsequent to the date that is 18 months after the Closing Date.
8.4 Waiver of Other Representations.
8.6 Dispute Resolution. Any dispute or claim arising under this Agreement that is not resolved in the ordinary course of business shall be referred to a senior executive (President or a Vice President) of each Purchaser and Seller, with authority to decide or resolve the matter in dispute, for review and resolution. Such senior executives shall meet and in good faith attempt to resolve the dispute within thirty (30) days. If the Parties are unable to resolve a dispute pursuant to this Section 8.6, any Party may enforce its rights at law or in equity subject to the provisions of this Agreement.
8.7 Procedure for Indemnification - Third-Party Claims.
(d) If the Indemnified Party has determined in good faith that (i) joint representation under clause (b)(iv) would be inappropriate because of a conflict of interest if the Indemnifying Party is a party to the proceeding, or (ii) that there is a reasonable probability that a legal proceeding may adversely affect it other than as a result of monetary damages for which it would be entitled to indemnification from the Indemnifying Party under this Agreement, the Indemnified Party shall so notify the Indemnifying Party, and neither the Indemnifying Party nor such Indemnified Party shall be entitled to assume the defense of the other in the proceeding and each of the Indemnifying Party and the Indemnified Party shall be entitled to participate in such proceeding in its own defense at its own expense. Nothing in this paragraph (d) shall limit the Indemnifying Party's indemnification obligations, if any, resulting from the resolution of the Claims which are the basis for such proceeding.
ARTICLE IX
MISCELLANEOUS
If to Purchasers, to:
PNM Resources, Inc.
Xxxxxxxx
Xxxxxx
Xxxxxxxxxxx, Xxx
Xxxxxx 00000
Facsimile No.: 000-000-0000
Attn: Secretary
with a copy to:
Public Service Company of New Mexico
Energy Supply and Marketing
0000 Xxxxx X.X.
Xxxxxxxxxxx, Xxx
Xxxxxx 00000
Facsimile No.:
000-000-0000
Attn: Xxxxxx X. Xxxxxxxxxxx
And
Tucson Electric Power Company
c/o UniSource Energy Corporation
Xxx Xxxxx Xxxxxx Xxxxxx, Xxxxx
0000
Xxxxxx, Xxxxxxx
00000
Facsimile No.:
000-000-0000
Attn: Xxxxxxx X. XxXxxxxxx
with a copy to:
Tucson Electric Power Company
c/o UniSource Energy Corporation
Xxx Xxxxx Xxxxxx Xxxxxx, Xxxxx
0000
Xxxxxx, Xxxxxxx 00000
Facsimile No.: 000-000-0000
Attn: General Counsel
And
Xxxxxx Dodge Energy Services, LLC
c/x Xxxxxx Dodge Corporation
Xxx Xxxxx Xxxxxxx Xxxxxx, 00/X
Xxxxxxx, Xxxxxxx 00000-0000
Facsimile No.: 000-000-0000
Attn: Xxxx Xxx
with copy to:
Xxxxxx Dodge Energy Services, LLC
c/x Xxxxxx Dodge Corporation
Xxx Xxxxx Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Facsimile No.: 000-000-0000
Attn: General Counsel
If to Seller, to:
Duke Energy North America, LLC
0000 Xxxxxxxxxx Xxxxx
Xxxxxxx, Xxxxx 00000-0000
Facsimile No.: 000-000-0000
Attn: Xxxxxx X. Xxxxxx
with copy to:
Duke Energy North America, LLC
0000 Xxxxxxxxxx Xxxxx
Xxxxxxx, Xxxxx 00000-0000
Facsimile No.: 000-000-0000
Attn: General Counsel
9.2 Entire Agreement. This Agreement supersedes all prior discussions and agreements between the Parties with respect to the subject matter hereof and contains the sole and entire agreement between the Parties with respect to the subject matter hereof.
9.3 Expenses. Except as otherwise expressly provided in this Agreement, each Party will pay its own costs and expenses incurred in anticipation of, relating to and in connection with the negotiation and execution of this Agreement and the transactions contemplated hereby.
9.4 Public Announcements. Except as may be required by Law or any applicable stock exchange rules, neither Seller nor any Purchaser will issue or make, and each will cause the Company not to issue or make, any press releases or other public disclosures concerning this Agreement or the transactions contemplated hereby without first obtaining consent from the other Party or Parties, which consent shall not be unreasonably withheld, conditioned or delayed.
9.6 Disclosure. Seller may, at its option, include in the Schedules items that are not material in order to avoid any misunderstanding, and any such inclusion, or any references to dollar amounts, shall not be deemed to be an acknowledgment or representation that such items are material, to establish any standard of materiality or to define further the meaning of such terms for purposes of this Agreement. Information disclosed in the Schedules shall constitute a disclosure for all purposes under this Agreement notwithstanding any reference to a specific Section, and all such information shall be deemed to qualify the entire Agreement and not just such section.
9.7 Waiver. Any term or condition of this Agreement may be waived at any time by the Party that is entitled to the benefit thereof, but no such waiver shall be effective unless set forth in a written instrument duly executed by or on behalf of the Party waiving such term or condition. No waiver by any Party of any term or condition of this Agreement, in any one or more instances, shall be deemed to be or construed as a waiver of the same or any other term or condition of this Agreement on any future occasion. All remedies, either under this Agreement or by Law or otherwise afforded, will be cumulative and not alternative.
9.8 Amendment. This Agreement may be amended, supplemented or modified only by a written instrument duly executed by or on behalf of each Party.
9.9 No Third Party Beneficiary. Except for Purchaser Related Persons and Seller Related Persons constituting Indemnified Parties, the terms and provisions of this Agreement are intended solely for the benefit of the Parties and their respective successors or permitted assigns, and it is not the intention of the Parties to confer third-party beneficiary rights upon any other Person.
9.10 Assignment; Binding Effect.
9.11 Headings. The headings used in this Agreement have been inserted for convenience of reference only and do not define or limit the provisions hereof.
9.12 Invalid Provisions. If any provision of this Agreement is held to be illegal, invalid or unenforceable under any present or future Law, and if the rights or obligations of any Party under this Agreement will not be materially and adversely affected thereby, such provision will be fully severable, this Agreement will be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a part hereof, the remaining provisions of this Agreement will remain in full force and effect and will not be affected by the illegal, invalid or unenforceable provision or by its severance herefrom and in lieu of such illegal, invalid or unenforceable provision, there will be added automatically as a part of this Agreement a legal, valid and enforceable provision as similar in terms to such illegal, invalid or unenforceable provision as may be possible.
9.13 Counterparts; Facsimile. This Agreement may be executed in any number of counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. Any facsimile copies hereof or signature hereon shall, for all purposes, be deemed originals.
9.14 Governing Law; Venue; and Jurisdiction.
(a) This Agreement shall be governed by and construed in accordance with the Laws of the State of New York, without giving effect to any choice or conflict of law provision other than Section 5-1401 of the New York General Obligation Law.
(b) THE PARTIES HEREBY IRREVOCABLY SUBMIT TO THE NON-EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT IN NEW YORK, NEW YORK IN THE BOROUGH OF MANHATTAN FOR THE PURPOSES OF ANY ACTION ARISING OUT OF OR BASED UPON THIS AGREEMENT OR RELATING TO THE SUBJECT MATTER HEREOF.
9.15 Attorneys' Fees. If a Party shall bring an action to enforce the provisions of this Agreement, the prevailing Party shall be entitled to recover its reasonable attorneys' fees and expenses incurred in such action from the unsuccessful Party or Parties, as the case may be.
[signature page follows]
IN WITNESS WHEREOF, this Purchase and Sale Agreement has been duly executed and delivered by the duly authorized officer of each Party as of the date first above written.
DUKE ENERGY NORTH AMERICA, LLC
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Vice President
XXXXXX DODGE ENERGY SERVICES, LLC
By: /s/ X.X. Xxxxx
Name: X.X. Xxxxx
Title: President
PNM RESOURCES, INC.
By: /s/ Xxxx X. Xxxxx
Name: Xxxx X. Xxxxx
Title: Senior Vice President
TUCSON ELECTRIC POWER COMPANY
By: /s/ Xxxxxxx X. XxXxxxxxx
Name: Xxxxxxx X. XxXxxxxxx
Title: Senior Vice President