EXHIBIT B-5
ASSET CONTRIBUTION AGREEMENT
BETWEEN
AMERICAN TRANSMISSION COMPANY LLC
AND
[WISCONSIN ELECTRIC POWER COMPANY]
[WISCONSIN POWER AND LIGHT COMPANY]
[WISCONSIN PUBLIC SERVICE CORP.]
[MADISON GAS & ELECTRIC CO.]
[EDISON SAULT ELECTRIC COMPANY]
[SOUTH BELOIT WATER, GAS AND ELECTRIC COMPANY]
DATED: , 2000
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TABLE OF CONTENTS
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PAGE
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ARTICLE I DEFINITIONS..........................................................1
SECTION 1.1 DEFINITIONS...................................................1
ARTICLE II CLASSIFICATION OF CERTAIN CONTRIBUTED ASSETS........................7
SECTION 2.1 CLASSIFICATION OF CONTRIBUTED ASSETS..........................7
SECTION 2.2 CLASSIFICATION OF TRANSMISSION LINE LAND RIGHTS BY
CIRCUIT METHOD................................................7
SECTION 2.3 CLASSIFICATION OF TRANSMISSION LINE LAND RIGHTS BY
PARCEL-BY-PARCEL METHOD.......................................8
SECTION 2.4 CLASSIFICATION OF TRANSMISSION SUBSTATION LAND RIGHTS.........8
SECTION 2.5 CLASSIFICATION AND DISPUTES...................................8
ARTICLE III CONTRIBUTION OF ASSETS.............................................9
SECTION 3.1 CONTRIBUTION OF ASSETS........................................9
SECTION 3.2 TRANSMISSION LINES............................................9
SECTION 3.3 TRANSMISSION SUBSTATIONS.....................................10
SECTION 3.4 PERMITS......................................................11
SECTION 3.5 CONTRACTS....................................................12
SECTION 3.6 CONSTRUCTION WORK IN PROGRESS................................12
SECTION 3.7 PERSONAL PROPERTY............................................12
SECTION 3.8 INVENTORY....................................................12
SECTION 3.9 WARRANTIES...................................................13
SECTION 3.10 ALLOCATION OF LIABILITY......................................13
SECTION 3.11 TITLE INSURANCE, SURVEYS AND SUBDIVISION.....................13
SECTION 3.12 DOCUMENTED CONSTRUCTION PROJECTS.............................14
SECTION 3.13 [STOUGHTON OPERATIONS CENTER.................................15
ARTICLE IV ISSUANCE OF MEMBER UNITS TO CONTRIBUTOR............................15
ARTICLE V REPRESENTATIONS AND WARRANTIES OF THE CONTRIBUTOR...................15
SECTION 5.1 ORGANIZATION OF THE CONTRIBUTOR..............................15
SECTION 5.2 AUTHORITY RELATIVE TO THIS AGREEMENT.........................15
SECTION 5.3 ENFORCEABILITY...............................................16
SECTION 5.4 CONSENTS AND APPROVALS; NO VIOLATIONS........................16
SECTION 5.5 LEGAL PROCEEDINGS............................................16
SECTION 5.6 INTERESTS IN CERTAIN CONTRIBUTED ASSETS......................17
SECTION 5.7 ENVIRONMENTAL MATTERS........................................17
SECTION 5.8 ADEQUACY OF CONTRIBUTED ASSETS...............................17
ARTICLE VI REPRESENTATIONS AND WARRANTIES OF ATCLLC...........................17
SECTION 6.1 ORGANIZATION AND AUTHORITY OF ATCLLC.........................18
SECTION 6.2 AUTHORITY RELATIVE TO THIS AGREEMENT.........................18
SECTION 6.3 ENFORCEABILITY...............................................18
SECTION 6.4 CONSENTS AND APPROVALS; NO VIOLATIONS........................18
SECTION 6.5 LITIGATION...................................................19
ARTICLE VII COVENANTS.........................................................19
SECTION 7.1 CONDUCT OF THE BUSINESS OF THE CONTRIBUTOR...................19
SECTION 7.2 PROJECT MAP..................................................19
SECTION 7.3 CONSENTS AND APPROVALS.......................................19
SECTION 7.4 CASUALTY.....................................................20
SECTION 7.5 ACCESS TO CONTRIBUTED ASSETS.................................20
SECTION 7.6 CONTINUED ENVIRONMENTAL REPORTING............................20
SECTION 7.7 CONTINUED CONVEYANCE.........................................20
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ARTICLE VIII CONDITIONS PRECEDENT.............................................21
SECTION 8.1 MUTUAL CONDITIONS PRECEDENT..................................21
SECTION 8.2 CONDITIONS PRECEDENT TO OBLIGATIONS OF ATCLLC................21
SECTION 8.3 CONDITIONS PRECEDENT TO OBLIGATIONS OF THE CONTRIBUTOR.......22
ARTICLE IX INDEMNIFICATION....................................................23
SECTION 9.1 INDEMNIFICATION..............................................23
SECTION 9.2 NOTICE OF PROCEEDINGS........................................24
SECTION 9.3 DEFENSE OF CLAIMS............................................25
SECTION 9.4 SUBROGATION..................................................26
ARTICLE X CLOSING.............................................................26
SECTION 10.1 THE CLOSING DATE.............................................26
SECTION 10.2 CLOSING COSTS................................................26
SECTION 10.3 PRORATIONS...................................................26
SECTION 10.4 DEFAULT AND REMEDIES.........................................27
ARTICLE XI POST CLOSING.......................................................27
SECTION 11.1 FURTHER ASSURANCES...........................................27
SECTION 11.2 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENT........27
SECTION 11.3 ACCESS TO RECORDS............................................27
ARTICLE XII MISCELLANEOUS.....................................................28
SECTION 12.1 NOTICES......................................................28
SECTION 12.2 ENTIRE AGREEMENT.............................................29
SECTION 12.3 INTERPRETATION AND CONSTRUCTION..............................29
SECTION 12.4 COUNTERPARTS.................................................29
SECTION 12.5 BINDING ON SUCCESSORS AND ASSIGNMENT.........................29
SECTION 12.6 GOVERNING LAW................................................29
SECTION 12.7 SEVERABILITY.................................................29
SECTION 12.8 AMENDMENTS AND WAIVERS.......................................30
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ASSET CONTRIBUTION AGREEMENT
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THIS ASSET CONTRIBUTION AGREEMENT is executed as of , 2000,
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by and between American Transmission Company LLC, a Wisconsin limited liability
company ("ATCLLC"), and [Name of Contributing Utility], a
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corporation (the "Contributor").
R E C I T A L S
A. 1999 Wisconsin Act 9 includes provisions commonly referred to as the
Reliability 2000 Legislation, which authorized the organization of a new company
to provide electric transmission service;
B. ATCLLC has been formed in accordance with the provisions of the
Reliability 2000 Legislation;
C. Pursuant to the provisions of the Reliability 2000 Legislation,
companies with transmission assets have been authorized to contribute their
transmission assets to ATCLLC;
D. The Contributor desires to divest its interest in its transmission
facilities and associated land rights and to transfer ownership of such
facilities and rights to ATCLLC in exchange for an ownership interest therein,
all upon the terms and conditions set forth herein;
E. It is anticipated that certain other electric companies will
contribute their transmission assets to ATCLLC pursuant to separate BUT
SUBSTANTIALLY SIMILAR Asset Contribution Agreements between ATCLLC and such
electric companies.
NOW, THEREFORE, in consideration of the mutual premises and covenants
contained herein, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions
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Capitalized terms used and not otherwise defined herein shall have the
respective meanings assigned to such terms as set forth below, or if not so
defined, as set forth in the Operating Agreement.
"Agreement" means this Asset Contribution Agreement, together with all
Schedules and Exhibits hereto.
"ATCLLC" means American Transmission Company LLC, a Wisconsin limited
liability company.
"Circuit" means: (i) a line commencing at one substation and extending to
another substation, (ii) a line commencing at one substation and returning to
the same substation or (iii) a line commencing at a substation and terminating
other than at a substation.
"Circuit Method" means the method of classifying the Transmission Line Land
Rights set forth in Section 2.2.
"Closing" has the meaning provided in Article X.
"Closing Date" has the meaning provided in Article X.
"Construction Work In Progress" means, as of the Operations Date, any
construction project which is not a Documented Construction Project and that is,
as of the Operations Date, under construction. Such term shall include, with
respect to each construction project, the land right on which such construction
project is being built, all personal property and fixtures to which the
Contributor has title that are or are anticipated to be a part of such
construction project and all contracts for the construction of such construction
project to which the Contributor is a party.
"Contracts" means agreements, contracts, memoranda of understanding, joint
ventures, letters of intent and any other form of agreement.
"Contributed Assets" has the meaning provided in Section 3.1.
"Contributor" has the meaning provided in the preamble to this Agreement.
"Dispute Resolution Provisions" means those provisions for resolving
disputes among the Members and between the Members and the Company set forth as
Exhibit B to the Operating Agreement.
"Distribution" means (i) the distribution of electricity at nominal
voltages that are lower than 50 kV, or (ii) the distribution of electricity
regardless of the nominal voltage at which such distribution facility is
designed to operate or does operate, if the facilities are designated by the
PSCW as used for distribution.
"Distribution Facility" means (i) an electrical facility used for
Distribution or (ii) a natural gas pipeline and related facilities used for the
distribution of natural gas.
"Distribution Line" means (i) an electrical line used for Distribution; or
(ii) a natural gas pipeline used for the distribution of natural gas.
"Documented Construction Project" means a construction project for which a
certificate of authority or public convenience and necessity has been applied
for or issued by the PSCW under Wis. Stat.ss.ss.196.49 or 196.491.
"Encumbrance" means any mortgage, pledge, lien, option, conditional sale
agreement, encumbrance, security interest, claim or charge of any kind.
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"Environmental Claim" means any and all administrative, regulatory or
judicial actions, actions arising under local, state or federal law including
without limitation, claims of trespass, public or private nuisance, waste, and
breach of standards of care, suits, including citizen suits, demands, demand
letters, claims, directives, proceedings or notices by any Governmental
Authority or other person alleging in writing violations of or liability under,
or seeking to enjoin any activity as inconsistent with, or demanding remediation
of conditions which, with notice, the passage of time, or both would constitute
violations of, any Environmental Laws or any other local, state or federal law,
statute, ordinance, rule, code, regulation, administrative interpretation,
guidance document or memorandum, decree or order, contractual obligation or
common-law doctrine including without limitation Chapters 59, 60, 61, 62, 66,
and 87 of the Wisconsin Statutes, arising out of, based on or resulting from the
presence, use, generation, treatment, storage, recycling, management, deposit,
disposal, leakage, burial, discharge, emission, injection, spillage, seepage,
leaching, escaping, emptying, dumping, pumping, pouring, placement or release of
any Hazardous Material from, at, in, on or under, or the transport to or from,
any Contributed Asset, and by any Person, or any loss of or damage to any
property, natural resource or the environment, or death of or injury to any
person, resulting from or relating in any way to any Contributed Asset or to any
Hazardous Material that is or was present, used, generated, treated, stored,
recycled, managed, transported, deposited, disposed of, buried, discharged,
emitted, injected, emptied, dumped, pumped, poured, placed or Released, or that
leaked, spilled, seeped, leached or escaped, at, on, in, under, to or from any
Contributed Asset. Environmental Claim shall exclude those claims arising from
action, inaction or a condition first existing after the Operations Date or
arising out of an action, inaction or condition occurring after the Operations
Date. In the event that an Environmental Claim is aggravated or exacerbated by
action, inaction or condition occurring after the Operations Date it will still
be an Environmental Claim but ATCLLC will contribute to any Environmental
liabilities in proportion to the actual harm caused by events occurring after
the Operations Date. Environmental Claim includes any environmental claim made
against ATCLLC as a successor in interest to Contributor.
"Environmental Information" means any communications or written material
from or to any local, state or federal regulatory agency or an adjacent or
nearby landowner (if such landowner asserts a material environmental claim) or
internal memorandum relating to the status of the assets under applicable
Environmental Laws, or any investigations, audits, reviews, studies or other
analyses (including Phase I or Phase II reports) concerning the Contributed
Assets.
"Environmental Laws" means any local, state or federal law or other
statute, law, ordinance, rule, code, regulation, administrative interpretation,
guidance document or memorandum, decree or order, and all common law relating to
pollution or protection of human health or the environment, or governing,
regulating or imposing liability or standards of conduct concerning the
manufacture, use, treatment, generation, distribution, transportation, storage,
labeling, testing, processing, discharge, disposal or other handling, release or
threatened release, control, or cleanup of any Hazardous Material, including
without limitation, the Clean Air Act, 42 U.S.C. xx.xx. 7401 to 7671q, the Clean
Water Act, also known as the Federal Water Pollution Act, 33 U.S.C. xx.xx. 1251
to 1387, as amended by the Water Quality Act of 1987 Pub. L. No. 100-4 (Feb. 4,
1987), the Toxic Substance Control Act of 1976 ("TSCA"), as amended, 15 U.S.C.
xx.xx. 2601 to 2692, the Federal Insecticide, Fungicide and Rodenticide Act, ss.
7 U.S.C. xx.xx. 136 to 136y, the Safe Drinking Water Act, 42 U.S.C. xx.xx. 300f
et seq., the Surface Mining Control and Reclamation Act, 30 U.S.C. ss. 1201,
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1202, and 1211, the Comprehensive Environmental Response, Compensation and
Liability Act, of 1980 ("CERCLA"), 42 U.S.C. xx.xx. 9061 to 9675, as amended by
the Superfund Amendment and Reauthorization Act of 1986, ("XXXX"), Public Law
99-499, 100 Stat. 1613, the Emergency Planning and Community Right to Know Act
("EPCRA"), 42 U.S.C. xx.xx. 11001 to 11050, the Solid Waste Disposal Act, as
amended by the Resource Conservation and Recovery Act, ("RCRA"), 42 U.S.C. ss.
6901 to 6992k, the Occupational Safety and Health Act as amended, ("OSHA"), 29
U.S.C. ss. 655 and ss. 657, the National Historic Preservation Act ("NHPA"), 16
U.S.C. xx.xx. 470 et seq., the Hazardous Materials Transportation Act, 49 U.S.C.
ss. 1802, Chapters 30, 31, 160, 254, 280, 281, 283, 285, 287, 289, 291, 292,
293, 295, 299, and 823 of the Wisconsin Statutes, and including any amendment of
any of the above, together with any other statute, rule, regulation or order of
any Government Authority having jurisdiction over the protection of human health
or the environment or the control of Hazardous Materials, wastes or substances,
including without limitation the United States Environmental Protection Agency,
the United States Nuclear Regulatory Commission, the States of Wisconsin,
Michigan or Illinois and the Department of Health of Milwaukee County,
Wisconsin, or their agencies or municipalities.
"Environmental Liabilities" means those liabilities, losses, damages and
expenses (including the reasonable costs of investigation, testing, containment,
removal, clean-up, abatement or remediation and attorneys fees and costs)
incurred in order to defend against or comply with Environmental Laws or other
legally enforceable obligation relating to an Environmental Claim.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Existing Attachment Agreements" means those agreements existing on the
date hereof between the Contributor and a third party and which grant the third
party the right to attach wires or other devices to, on or under the Contributed
Assets.
"Expansion" means any proposed use of land for a Transmission Facility that
is, as of the Closing Date: (i) under construction, (ii) the subject of a
contract for construction thereof, (iii) the subject of any written plans for
the construction thereof, or (iv) is specifically agreed in writing by ATCLLC
and the Contributor based on the particular facts and circumstances.
"Good Utility Practice" means any of the practices, methods and acts
engaged in or approved by a significant portion of the electric utility industry
during the relevant time period, or any of the practices, methods and acts
which, in the exercise of reasonable judgment in light of the facts known at the
time the decision was made, could have been expected to accomplish the desired
result at a reasonable cost consistent with good business practices,
reliability, safety and expedition. Good Utility Practice is not intended to be
limited to the optimum practice, method, or act to the exclusion of all others,
but rather to be acceptable practices, methods, or acts generally accepted in
the region.
"Governmental Authority" means any federal, state or local governmental or
regulatory authority, administrative agency, commission, department, board or
court that has jurisdiction over any of the parties to this Agreement or any
Contributed Asset.
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"Hazardous Materials" means any pollutant, contaminant, waste, toxic or
hazardous chemical, waste or substance, including, without limitation, asbestos
in any form that is or could become friable, urea formaldehyde insulation,
petroleum or petroleum products, manufactured gas waste, polychlorinated
biphenyls (PCBs) and any item, article, substance, waste, equipment, or
container containing or whose surfaces have been in direct contact with PCBs,
air pollutants, water pollutants, and other substances defined or listed as a
hazardous, extremely hazardous, toxic, dangerous restricted, nuisance, or
otherwise harmful to human health or the environment under any Environmental Law
or the manufacture, use, treatment, generation, distribution, transportation,
storage, labeling, testing, processing, discharge, disposal or other handling,
release or threatened release, control, or cleanup of which is prohibited,
limited, or regulated pursuant to any Environmental Law or determined to be
hazardous, extremely hazardous, toxic, dangerous, restricted, nuisance, or
otherwise harmful to human health or the environment under any Environmental
Law.
"Intended Distribution Facility" means any Distribution Facility that, as
of the Closing Date, is: (i) under construction, (ii) the subject of a contract
for construction thereof, (iii) the subject of any written plans for the
construction thereof, or (iv) as specifically agreed in writing by ATCLLC and
the Contributor based on the particular facts and circumstances.
"Operating Agreement" means the operating agreement of American
Transmission Company LLC, as it may be amended from time to time.
"Organizational Documents" means, with respect to any corporation, its
articles of incorporation and by-laws, with respect to any limited liability
company, its articles of organization and operating agreement, and with respect
to any cooperative, its [articles of association and by-laws].
"Parcel-by-Parcel Method" means the method of classifying Transmission Line
Land Rights set forth in Section 2.3.
"Permitted Encumbrances" means such minor imperfections of title as do not
restrict or interfere with the intended use of the subject parcel.
"Person" means an individual, corporation, general or limited partnership,
joint venture, trust, unincorporated association, limited liability company or
any other legal or commercial entity.
"Personal Property" has the meaning provided in Section 3.7.
"Project Map" has the meaning provided in Section 7.2.
"SEC" means the United States Securities and Exchange Commission.
"Survey" means a survey drawing of a parcel showing all boundaries and
locating the perimeter security fence, improvements, including driveways, that
are outside the fence, and encroachments, if any, onto or off of the parcel, and
containing a certificate by the surveyor reasonably acceptable to the
Contributor and ATCLLC, which in all events must contain details necessary for
5
the issuance of title insurance without an exception for matters that would be
disclosed by a survey.
"Transmission" means (i) the transmission of electricity at nominal
voltages that are greater than or equal to 50 kV or (ii) the transmission of
electricity regardless of the nominal voltage at which such facility is designed
to operate or does operate, if the facilities are designated by PSCW as
transmission.
"Transmission Line" means a line composed of one or more Transmission Line
Facilities and the Transmission Line Land Rights that underlie those
Transmission Line Facilities.
"Transmission Line Easement" means any easement in which a Contributor has
any right, title or interest upon which a Transmission Line Facility is located.
"Transmission Line Facility" means one or more pieces of equipment
including, without limitation, any pipe, pipeline, duct, wire, line, conduit,
pole, tower, equipment or other structure used for Transmission that are part of
a Transmission Line, including, without limitation, all towers and poles to
which any Transmission Line is attached, but excluding "spanner" towers and
poles to which only Distribution Lines are attached.
"Transmission Line Fee Interest" means real property owned in fee simple by
a Contributor upon which a Transmission Line Facility is located.
"Transmission Line Land Right" means an individual Transmission Line Fee
Interest, Transmission Line Easement or Transmission Line Lease.
"Transmission Line Lease" means a lease, license or contract pursuant to
which a Contributor, as lessee, licensee or contract party leases, licenses or
otherwise obtains a contract right to the possession and/or use of a parcel of
real property upon which a Transmission Line Facility is located.
"Transmission Substation" means a Transmission Substation Facility,
together with the underlying Transmission Substation Land Rights and all the
rights, benefits, privileges, easements, tenements, hereditaments, appurtenances
and interests in and to such underlying Transmission Substation Land Rights.
"Transmission Substation Easement" means any easement in which the
Contributor has any right, title or interest upon which a Transmission
Substation Facility owned by a Contributor is located.
"Transmission Substation Facility" means any and all equipment, including,
without limitation, towers, poles, transformers, circuit breakers, meters, and
wires located at any substation that are used for Transmission.
"Transmission Substation Fee Interest" means any real property owned in fee
simple by a Contributor and upon which a Transmission Substation Facility is
located.
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"Transmission Substation Lease" means a lease, license or contract
pursuant to which a Contributor, as lessee, licensee or contract party leases,
licenses or otherwise obtains a contract right to the possession and/or use of a
parcel of real property upon which a Transmission Substation Facility is
located.
"Transmission Substation Land Right" means an individual Transmission
Substation Fee Interest, Transmission Substation Easement or Transmission
Substation Lease.
ARTICLE II
CLASSIFICATION OF CERTAIN CONTRIBUTED ASSETS
SECTION 2.1 Classification of Contributed Assets.
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The Transmission Line Land Rights and Transmission Substation Land Rights
to be contributed hereunder shall be classified according to this Article II.
Transmission Line Land Rights shall be classified pursuant to either Section 2.2
or 2.3. Transmission Substation Land Rights shall be classified pursuant to
Section 2.4. The Contributor shall elect, by giving written notice to ATCLLC
upon execution of this Agreement, either the Circuit Method or the
Parcel-by-Parcel Method for classifying the Transmission Line Land Rights. Once
a method is selected it will be the only method used to classify all of the
Transmission Line Land Rights that shall be contributed under this Agreement.
SECTION 2.2 Classification of Transmission Line Land Rights by Circuit
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Method.
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If the Circuit Method is selected each Transmission Line Land Right that
shall be contributed under this Agreement shall be individually classified
according to the Circuit of which it is a part under the following rules:
(a) Transmission Only. A specific Transmission Line Land Right shall be
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classified as "Transmission Only" if, as of the Closing Date and assuming the
completion of construction of all Intended Distribution Facilities, no part of
the Circuit of which the Transmission Line Land Right being classified is a
component, is used for Distribution or is paralleled by a Distribution Line.
(b) Incidental Use. A specific Transmission Line Land Right shall be
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classified as "Incidental Use" if, as of the Closing Date and assuming the
completion of construction of all Intended Distribution Facilities, the Circuit
of which the Transmission Line Land Right is a component is used for
Distribution on 25% or less of the length of the Circuit; provided, however,
that the Contributor may request that ATCLLC treat a specific Circuit (and the
component Transmission Line Land Rights) as "Joint Use," based on facts and
circumstances specific to such Circuit, notwithstanding its objective
classification as "Incidental Use."
(c) Joint Use. A specific Transmission Line Land Right shall be classified
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as "Joint Use" if, as of the Closing Date and assuming the completion of
construction of all Intended Distribution Facilities, the Circuit of which the
Transmission Line Land Right is a component is used for Distribution on more
than 25% of the length of the Circuit.
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SECTION 2.3 Classification of Transmission Line Land Rights by
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Parcel-by-Parcel Method.
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If the Parcel-by-Parcel Method is selected, each Transmission Line Land
Right shall be classified according to the following rules:
(a) Transmission Only. A specific Transmission Line Land Right shall be
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classified as "Transmission Only" if, as of the Closing Date and assuming the
completion of construction of all Intended Distribution Facilities, one or more
Transmission Lines are located on the Transmission Line Land Right and no
Distribution Line is located on the Transmission Line Land Right.
(b) Joint Use. A specific Transmission Line Land Right shall be classified
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as "Joint Use" if, as of the Closing Date and assuming the completion of
construction of all Intended Distribution Facilities, one or more Transmission
Lines and one or more Distribution Lines are located on the Transmission Line
Land Right.
SECTION 2.4 Classification of Transmission Substation Land Rights.
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Transmission Substations and the Transmission Substation Land Rights that
are a part of such Transmission Substations shall be classified individually
according to the following rules:
(a) Transmission Only. A specific Transmission Substation shall be
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classified as "Transmission Only" if, as of the Closing Date and assuming the
completion of construction of all Intended Distribution Facilities, it is used
solely for Transmission and no part, or portion of the electrical capacity
thereof, is used for Distribution or in connection with the generation of
electricity; provided, however, that Distribution to any part of the substation
itself shall be deemed not to be Distribution for the purposes of this sentence.
(b) Joint Use. A specific Transmission Substation shall be classified as
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"Joint Use" if, as of the Closing Date and assuming the completion of
construction of all Intended Distribution Facilities:
(i) the Transmission Substation or any portion of the electrical
capacity is used for Distribution as well as Transmission; provided,
however, that Distribution to any part of the substation itself shall be
deemed not to be Distribution for the purposes of this sentence; or
(ii) the Transmission Substation is used in connection with the
generation of electricity.
SECTION 2.5 Classification and Disputes.
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The classification of each of the Transmission Line Land Rights and
Transmission Substation Land Rights, as determined in accordance with Sections
2.1 through 2.4, shall be listed on Schedule 3.2 and Schedule 3.3, respectively.
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If ATCLLC and the Contributor are unable to agree on the classification of a
8
particular item, either party shall have the right to request that the dispute
be resolved by the PSCW.
ARTICLE III
CONTRIBUTION OF ASSETS
SECTION 3.1 Contribution of Assets.
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Subject to the terms and conditions of this Agreement, as of the Closing
Date, the Contributor shall assign, transfer, convey and deliver to ATCLLC as a
capital contribution, free and clear of all Encumbrances other than Permitted
Encumbrances, certain right, title and interest of the Contributor specified in
Sections 3.2 through 3.10 hereof in and to the assets identified in Sections 3.2
through 3.10 hereof (collectively the "Contributed Assets" and each individually
a "Contributed Asset") in the manner specified in Sections 3.2 through 3.10
hereof.
SECTION 3.2 Transmission Lines.
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The Contributor shall contribute the Transmission Lines identified in
Schedule 3.2 as follows:
(a) Transmission Only Transmission Line Land Rights. Transmission Only
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Transmission Line Land Rights shall be contributed as follows:
(i) Transmission Only Transmission Line Fee Interests. Subject to the
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provisions of Section 3.12, all Transmission Only Transmission Line Fee
Interests identified in Schedule 3.2(a)(i) shall be conveyed to ATCLLC
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pursuant to a deed substantially in the form of the deed attached as
Exhibit 3.2(a)(i);
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(ii) Transmission Only Transmission Line Easements. All Transmission
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Only Transmission Line Easements identified in Schedule 3.2(a)(ii) shall be
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assigned to ATCLLC pursuant to an assignment substantially in the form of
the assignment attached as Exhibit 3.2(a)(ii);
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(iii) Transmission Only Transmission Line Leases. All Transmission
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Only Transmission Line Leases identified in Schedule 3.2(a)(iii) shall be
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assigned to ATCLLC pursuant to an assignment substantially in the form of
the assignment attached as Exhibit 3.2(a)(iii).
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(b) Incidental Use Transmission Line Land Rights. Incidental Use
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Transmission Line Land Rights shall be contributed as follows:
(i) Incidental Use Transmission Line Fee Interests. All Incidental Use
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Transmission Line Fee Interests identified in Schedule 3.2(b)(i) shall be
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conveyed to ATCLLC pursuant to a deed substantially in the form of the deed
attached as Exhibit 3.2(b)(i);
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(ii) Incidental Use Transmission Line Easements. All Incidental Use
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Transmission Line Easements identified in Schedule 3.2(b)(ii) shall be
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assigned to ATCLLC pursuant to an assignment substantially in the form of
the assignment attached as Exhibit 3.2(b)(ii);
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(iii) Incidental Use Transmission Line Leases. All Incidental Use
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Transmission Line Leases identified in Schedule 3.2(b)(iii) shall be
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assigned to ATCLLC pursuant to an assignment substantially in the form of
the assignment attached as Exhibit 3.2(b)(iii).
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(c) Joint Use Transmission Line Land Rights. Joint Use Transmission Line
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Land Rights shall be contributed as follows:
(i) Joint Use Transmission Line Fee Interests. The Contributor shall
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grant to ATCLLC an easement over and across all of the Joint Use
Transmission Line Fee Interests identified in Schedule 3.2(c)(i) pursuant
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to a grant of easement substantially in the form of the grant of easement
attached as Exhibit 3.2(c)(i);
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(ii) Joint Use Transmission Line Easements. The Contributor shall
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assign certain rights to and under the Joint Use Transmission Line
Easements identified in Schedule 3.2(c)(ii) to ATCLLC pursuant to an
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assignment substantially in the form of the assignment attached as
Exhibit 3.2(c)(ii);
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(iii) Joint Use Transmission Line Leases. The Contributor shall assign
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certain rights to and under the Joint Use Transmission Line Leases
identified in Schedule 3.2(c)(iii) to ATCLLC pursuant to an assignment
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substantially in the form of the assignment attached as
Exhibit 3.2(c)(iii).
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(d) Transmission Line Facilities. All Transmission Line Facilities that
----------------------------
are a component of Transmission Lines that are Contributed Assets and that are
not transferred with the Transmission Line Land Rights upon which they are
located shall be contributed, transferred, conveyed and assigned to ATCLLC
pursuant to a Xxxx of Sale substantially in the form of the Xxxx of Sale
attached as Exhibit 3.2(d).
--------------
SECTION 3.3 Transmission Substations.
------------------------
The Contributor shall contribute the Transmission Substations as follows:
(a) Transmission Only Transmission Substation Land Rights. The Contributor
-----------------------------------------------------
shall contribute its Transmission Only Transmission Substation Land Rights as
follows:
(i) Transmission Only Transmission Substation Fee Interests. Subject
-------------------------------------------------------
to the provisions of Section 3.12, Transmission Only Transmission
Substation Fee Interests identified in Schedule 3.3(a)(i) shall be conveyed
------------------
to ATCLLC pursuant to a deed substantially in the form of the deed attached
as Exhibit 3.3(a)(i);
-----------------
10
(ii) Transmission Only Transmission Substation Easements. All
---------------------------------------------------
Transmission Only Transmission Substation Easements identified in
Schedule 3.3(a)(ii) shall be assigned to ATCLLC pursuant to an assignment
-------------------
substantially in the form of the assignment attached as Exhibit 3.3(a)(ii).
------------------
(iii) Transmission Only Transmission Substation Leases. All
------------------------------------------------
Transmission Only Transmission Substation Leases identified in
Schedule 3.3(a)(iii) shall be assigned to ATCLLC pursuant to an assignment
--------------------
substantially in the form of the assignment attached hereto as
Exhibit 3.3(a)(iii).
-------------------
(b) Joint Use Transmission Substations. The Contributor shall contribute
----------------------------------
Joint Use Transmission Substation Land Rights as follows:
(i) Joint Use Transmission Substation Fee Interests. The Contributor
-----------------------------------------------
shall grant an easement over and upon the Joint Use Transmission Substation
Fee Interests identified in Schedule 3.3(b)(i) pursuant to a grant of
------------------
easement substantially in the form attached as Exhibit 3.3(b)(i);
-----------------
(ii) Joint Use Transmission Substation Easements. The Contributor
-------------------------------------------
shall assign certain easement rights to and under any Joint Use
Transmission Substation Easements identified in Schedule 3.3(b)(ii) to
-------------------
ATCLLC pursuant to an assignment substantially in the form attached hereto
as Exhibit 3.3(b)(ii).
------------------
(iii) Joint Use Transmission Substation Leases. The Contributor shall
----------------------------------------
sublease certain of its leasehold rights to and under all Joint Use
Transmission Substation Leases identified in Schedule 3.3(b)(iii) pursuant
--------------------
to a sublease substantially in the form attached hereto as
Exhibit 3.3(b)(iii).
-------------------
(c) Substation Facilities. All Transmission Substation Facilities that are
---------------------
a component of a Transmission Substation that is a Contributed Asset and that
are not transferred with the Transmission Substation Land Rights upon which they
are located shall be contributed, transferred, conveyed and assigned to ATCLLC
pursuant to a xxxx of sale substantially in the form of the document attached as
Exhibit 3.3(c).
--------------
SECTION 3.4 Permits.
-------
To the extent permitted by law, the Contributor shall assign to ATCLLC,
substantially in the form of the assignment attached hereto as Exhibit 3.4
-----------
(unless another form of assignment is required by the other party to such
agreement, e.g. railroads), and to the extent necessary for the operation of the
Contributed Assets, all building permits, certificates of occupancy, utility
reservations or allocations, certificates of compliance, railroad licenses,
permits and crossing agreements and any other licenses, permits, authorizations
or approvals (collectively, the "Permits"), which Permits are listed on
Schedule 3.4. Such assignment shall be non-exclusive to the extent that a Permit
------------
relates to other assets owned, leased or operated by the Contributor.
11
SECTION 3.5 Contracts.
---------
(a) The Contributor shall assign to ATCLLC, in substantially the form of
the assignment attached hereto as Exhibit 3.5(a), all contracts necessary for
--------------
the operation of the Contributed Assets (excluding those being used by
Contributor to continue to provide future goods or services to ATCLLC under an
interconnection or other agreement), together with any contracts relating to
Transmission Only Transmission Lines and Transmission Only Transmission
Substations, excluding, however, any Existing Attachment Agreements
(collectively, the "Contracts"), which Contracts are listed on Schedule 3.5.
------------
(b) ATCLLC and the Contributor shall execute a Pole Attachment Agreement,
substantially in the form of Exhibit 3.5(b), with respect to any Existing
--------------
Attachment Agreements.
(c) ATCLLC and the Contributor shall enter into an agreement,
substantially in the form of Exhibit 3.5(c), with respect to fiber optic cable
--------------
attachments.
SECTION 3.6 Construction Work In Progress.
-----------------------------
(a) All Construction Work In Progress identified in Schedule 3.6 shall be
------------
conveyed, assigned and transferred to ATCLLC pursuant to a deed substantially in
the form attached as Exhibit 3.6(a), a xxxx of sale substantially in the form
--------------
attached as Exhibit 3.6(b) and/or an assignment substantially in the form
--------------
attached as Exhibit 3.6(c).
--------------
(b) The Contributor shall assign to ATCLLC all rights and contracts
pertaining to the Construction Work in Progress to enable ATCLLC to continue the
Construction Work in Progress.
(c) If so requested by the Contributor, the Contributor and ATCLLC shall
negotiate in good faith an agreement whereby the Contributor shall be obligated
to complete the Construction Work in Progress in exchange for cash payments.
SECTION 3.7 Personal Property.
-----------------
The equipment and other items of personal property of the Contributor that
are owned or leased by the Contributor that are identified in Schedule 3.7,
------------
either generically or specifically (provided, however, that all such items with
a Contribution Value of over $25,000 shall be identified specifically) shall be
transferred to ATCLLC pursuant to a xxxx of sale substantially in the form
attached hereto as Exhibit 3.7 (the "Personal Property").
-----------
SECTION 3.8 Inventory.
---------
The inventory of the Contributor that is identified in Schedule 3.8 will be
------------
transferred to ATCLLC pursuant to a Xxxx of Sale substantially in the form
attached hereto as Exhibit 3.8. It is the parties' intention that most, if not
-----------
all, of the inventory will remain with the Contributor and be purchased by
ATCLLC, as needed, for cash. At ATCLLC's request, items used and useful in the
operation of the Transmission Line Facilities or Transmission Substation
Facilities, or in managing Transmission Line Land Rights or Transmission
Substation Land Rights, and not otherwise used or useful in the Contributor's
12
business shall be transferred to ATCLLC at their Contribution Value for cash.
Prior to the end of the three year period following the Operations Date, the
parties to this Agreement will meet and negotiate the transfer of any remaining
inventory which is useful for transmission, but not distribution or generation.
If there is a disagreement, the Contributor has the right to put items to
ATCLLC. If ATCLLC rejects such items, the issue will be subject to the Dispute
Resolution Provisions. Items transferred pursuant to the Dispute Resolution
Provisions or by agreement will be transferred at their Contribution Value.
SECTION 3.9 Warranties.
----------
Schedule 3.9 sets forth any warranties pertaining directly to the
------------
Contributed Assets. All right, title and interest of the Contributor in such
warranties shall be assigned to ATCLLC pursuant to an assignment substantially
in the form attached as Exhibit 3.9.
-----------
SECTION 3.10 Allocation of Liability.
-----------------------
(a) Prior to the Operations Date, the Contributor shall be responsible and
liable for the operation of the Contributed Assets and all obligations
associated therewith.
(b) From and after the Operations Date, ATCLLC shall be responsible and
liable for the operation of the Contributed Assets and for the performance of
all obligations associated therewith, except as otherwise provided herein.
(c) To the extent that any obligations under any instrument of conveyance,
Permit, Contract or Lease are not exclusive to ATCLLC, then ATCLLC shall have
the responsibility and liability for such obligation to the extent that it
relates to the operation of the transmission system, and the Contributor shall
otherwise have such responsibility or liability.
SECTION 3.11 Title Insurance, Surveys and Subdivision.
----------------------------------------
(a) Title & Survey. The Contributor shall obtain at its expense:
--------------
(i) for each Transmission Only Transmission Substation Fee Interest:
(x) one or more commitments for title insurance to be issued at Closing and
one or more title policies, all of which together (A) set forth the status
of the title of the parcel and all liens, claims, encumbrances, easements,
rights-of-way, encroachments, reservations, restrictions and other matters
affecting the parcel and (B) cover the value of the land, exclusive of the
value of any improvements thereon; (y) a Survey of the parcel; and (z) a
list of equipment located on the Transmission Substation parcel;
(ii) for each Transmission Only Transmission Substation on an easement
or lease, a report of title and a survey; and
(iii) for each Joint Use Transmission Substation, a copy of each site
plan that is in the Contributor's possession or control.
13
(b) Subdivision of Parcels. In the event that the Contributor reasonably
----------------------
determines that a Transmission Only Transmission Substation Fee Interest or
Transmission Only Transmission Line Fee Interest contains more land than is
necessary for the operation, use, maintenance and replacement of the
Transmission Substation Facility and/or Transmission Facility located thereon,
together with ingress and egress thereto, the Contributor may upon written
notice to ATCLLC no later than 30 days before filing for subdivision approval,
and at the cost and expense of the Contributor, subdivide the Transmission Only
Transmission Substation Fee Interest or Transmission Only Transmission Line Fee
Interest into two or more parcels so that the parcel to be conveyed, which
shall, for the purposes of Sections 3.2(a)(i) and 3.3(a)(i), be deemed to be the
Transmission Only Transmission Substation Fee Interest or Transmission Only
Transmission Line Fee Interest being contributed, as the case may be, contains
only the land actually necessary for the operation, use, maintenance, Expansion
and replacement of the Transmission Substation Facility and/or Transmission
Facility located thereon, together with ingress and egress thereto. In the event
that: the Contributor has determined that a parcel should be subdivided, and in
spite of the efforts of the parties hereto, the parcel has not, as of the
Closing Date, been subdivided because the Contributor was unable to obtain all
necessary governmental approvals prior to the Closing Date, then on the Closing
Date at the Contributor's sole election, a document escrow shall be established
with the title company coordinating document recordation pursuant to the terms
of an escrow agreement substantially in the form of the "Escrow
Agreement-Subdivided Parcel" attached as Exhibit 3.11(b). Pursuant to such
---------------
escrow agreement, the Contributor shall place in escrow two signed and
acknowledged deeds. One deed shall be to the entire undivided parcel and the
second deed shall identify the subdivided parcel with the projected legal
description following governmental approval and recordation of the subdivided
parcel but with blanks for the recording information to be obtained following
recordation of the certified survey map. The two deeds shall be held by the
title company under the escrow agreement, which shall direct that the title
company (x) complete and record the deed to the subdivided parcel following
governmental approval of the certified survey map and the assignment of a map
number and other information necessary for recordation or (y) if such map has
not been recorded within six months of the Closing, to record the deed to the
larger undivided parcel, whereupon an equitable adjustment shall be made between
the Contributor and ATCLLC.
SECTION 3.12 Documented Construction Projects.
--------------------------------
(a) Schedule 3.12 identifies all Documented Construction Projects of the
-------------
Contributor, their location and anticipated completion date and cost. The
Contributor shall, upon the completion of any such Documented Construction
Projects, contribute, or cause to be contributed, such Transmission Line to
ATCLLC using the same Circuit Method or the Parcel-by-Parcel Method as it used
in connection with the contribution of Contributed Assets on the Operations
Date, and shall use the corresponding instruments of transfer identified in
Article III to effect the transfer.
(b) If the Contribution Value of a Documented Construction Project exceeds
$3,000,000 in any running 12-month period, the Contributor shall comply with the
provisions of Section 3.5(d) of the Operating Agreement.
14
(c) The representations, warranties, covenants and indemnities set forth
in this Agreement shall be applicable, as appropriate, to the subsequent
transfer of Documented Construction Projects.
SECTION 3.13 [Stoughton Operations Center.1
---------------------------
The Stoughton Operations Center, as identified in Schedule 3.13 and
-------------
including real and personal property specified in Schedule 3.13, shall be
-------------
conveyed to ATCLLC by the Contributor pursuant to the documents attached as
Exhibit 3.13.
------------
ARTICLE IV
ISSUANCE OF MEMBER UNITS TO CONTRIBUTOR
In exchange for the contribution of the Contributed Assets, ATCLLC shall
issue to Contributor or an Affiliate designated by it on the Operations Date
that number of Member Units set forth in Schedule A to the Operating Agreement.
The methodology for calculating the value of the Contributed Assets shall be as
set forth in the Operating Agreement, and the number of Member Units owned by
the Contributor shall be adjusted following the Operations Date, all as set
forth in Section 3.2(f) of the Operating Agreement. Upon the contribution of any
Documented Construction Project, ATCLLC shall issue to the Contributor thereof
or an Affiliate designated by it that number of Member Units determined in
accordance with the Operating Agreement. [ hereby designates
---------- --------
as its Affiliate to which the Member Units are to be issued on its behalf.]2
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE CONTRIBUTOR
The Contributor represents and warrants to ATCLLC as follows:
SECTION 5.1 Organization of the Contributor.
-------------------------------
The Contributor is duly organized and validly existing under the laws of
the jurisdiction of incorporation, has full corporate power to carry on its
business as it is now being conducted and to own, operate and hold under lease
its assets and properties as and where such properties and assets now are owned,
operated or held. The copies of the Contributor's Organizational Documents which
have been delivered to ATCLLC are complete and correct and in full force and
effect on the date hereof.
SECTION 5.2 Authority Relative to this Agreement.
------------------------------------
The execution, delivery and performance of this Agreement and of all of the
other documents and instruments required hereby by the Contributor are within
the corporate power of the Contributor. The execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby have been
duly authorized by the Board of Directors of the Contributor and no other
------------------------
1 Only applicable to WPL.
2 Applicable to WPL and WPS.
15
corporate proceedings on the part of the Contributor are necessary to authorize
this Agreement or to consummate the transactions contemplated herein.
SECTION 5.3 Enforceability.
--------------
This Agreement and all of the other documents and instruments required
hereby have been or will be (in the case of documents and instruments permitted
to be delivered after the date hereof) duly and validly executed and delivered
by the Contributor and (assuming the due authorization, execution and delivery
hereof and thereof by ATCLLC) constitute or will constitute valid and binding
agreements of the Contributor, enforceable against the Contributor in accordance
with their respective terms, except as may be limited by bankruptcy, insolvency,
reorganization or other laws affecting creditors' rights generally or equitable
principles.
SECTION 5.4 Consents and Approvals; No Violations.
-------------------------------------
Except for any required filings with and approvals of applicable Federal,
state or local authority, no filing or registration with, and no permit,
authorization, consent, order or approval of, any Governmental Authority is
necessary or required in connection with the execution and delivery of this
Agreement by the Contributor or for the consummation by the Contributor of the
transactions contemplated by this Agreement. Upon obtaining any required
approvals, neither the execution, delivery or performance of this Agreement nor
the consummation of the transactions contemplated hereby by the Contributor will
(i) conflict with or result in any breach of any provision of the Organizational
Documents of the Contributor, (ii) subject to obtaining the third party consents
identified in Schedule 5.4 hereto, result in a violation or breach of, or
constitute (with or without due notice or lapse of time or both) a default (or
give rise to any right of termination, cancellation, acceleration or increased
cost) under, or otherwise result in any diminution of any of the rights of the
Contributor with respect to, any of the terms, conditions or provisions of any
security, note, bond, mortgage, indenture, license, contract or other instrument
or obligation to which the Contributor is a party or by which it or any of them
or any of their properties or assets may be bound or (iii) violate any order,
writ, injunction, decree, statute, rule or regulation applicable to the
Contributor or any of its properties or assets except, in the case of clauses
(ii) or (iii) above, for violations, breaches or defaults that, individually or
in the aggregate, may not reasonably be expected to have a material adverse
effect on the closing of the transactions contemplated by this Agreement, ATCLLC
or the Contributor and that will not prevent or delay the consummation of the
transactions contemplated hereby.
SECTION 5.5 Legal Proceedings.
-----------------
Except as specifically disclosed in Schedule 5.5 hereto, there are no
complaints, claims, suits, actions, mediations, arbitrations, proceedings or
investigations pending or, to the knowledge of the Contributor, threatened
against or affecting the Contributor that relate to any Contributed Asset or
would, if adversely determined, have a material adverse effect on the
Contributor's ability to perform its obligations hereunder, or on the validity
or enforceability of this Agreement.
16
SECTION 5.6 Interests In Certain Contributed Assets.
---------------------------------------
(a) The Transmission Facilities have been maintained in accordance with
Good Utility Practice, and will be so maintained through the Operations Date.
(b) Except for ATCLLC, pursuant to the terms of this Agreement and the
parties to Existing Attachment Agreements, no person, firm or entity has any
rights to acquire or lease all or any portion of the Contributed Assets, or
otherwise to obtain any interest therein, and there are no outstanding options,
rights of first refusal or negotiation, rights of reverter or rights of first
offer relating to the Contributed Assets or any interest therein.
SECTION 5.7 Environmental Matters.
---------------------
No later than June 30, 2001, Contributor will provide ATCLLC with all
Environmental Information in its possession or under its control concerning the
Contributed Assets. Any proprietary or confidential information contained in
such Environmental Information will be conveyed pursuant to a joint defense
agreement to be entered into between ATCLLC and the Contributor.
SECTION 5.8 Adequacy of Contributed Assets.
------------------------------
All of the Contributed Assets are suitable for Transmission as owned or
used. The Contributed Assets comprise all of the Transmission Lines,
Transmission Substations and other physical assets (other than Inventory) that
are necessary for: (i) Transmission over the Transmission Lines identified in
Schedule 3.2 on a commercially reasonable basis and (ii) for the interconnection
------------
of such Transmission Lines with all other Transmission Lines, Transmission
Facilities, Distribution Facilities, generation facilities and other electrical
equipment to which such Transmission Lines are currently interconnected.
EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN THIS
ARTICLE V AND THE INDEMNITIES AND OTHER TERMS OF THIS AGREEMENT, THE CONTRIBUTED
ASSETS ARE BEING CONTRIBUTED AND TRANSFERRED "AS IS, WHERE IS," AND CONTRIBUTOR
IS NOT MAKING ANY OTHER REPRESENTATIONS OR WARRANTIES, WRITTEN OR ORAL,
STATUTORY, EXPRESS OR IMPLIED, CONCERNING SUCH CONTRIBUTED ASSETS, INCLUDING, IN
PARTICULAR, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE,
ALL OF WHICH ARE HEREBY EXPRESSLY EXCLUDED AND DISCLAIMED.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF ATCLLC
ATCLLC represents and warrants to the Contributor as follows:
17
SECTION 6.1 Organization and Authority of ATCLLC.
------------------------------------
ATCLLC is duly organized and validly existing as a limited liability
company under the laws of Wisconsin, has full limited liability company power to
carry on its business as it is proposed to be conducted and to own, operate and
hold under lease its assets and properties as and where such properties and
assets now are, or are proposed to be, owned, operated or held.
The copies of ATCLLC's Organizational Documents which have been delivered
to the Contributor are complete and correct and will be in full force and effect
on the Operations Date.
SECTION 6.2 Authority Relative to this Agreement.
------------------------------------
The execution, delivery and performance of this Agreement, and of all of
the other documents and instruments required hereby by ATCLLC are within the
limited liability company power of ATCLLC. The execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby have been
duly authorized by ATCLLC Management Inc., its managing member, and by ATC
Management Inc.'s board of directors, and no other corporate proceedings on the
part of ATC or ATC Management Inc. are necessary to authorize this Agreement or
to consummate the transactions contemplated herein.
SECTION 6.3 Enforceability.
--------------
This Agreement and all of the other documents and instruments required
hereby have been or will be (in the case of documents and instruments permitted
to be delivered after the date hereof) duly and validly executed and delivered
by ATCLLC and (assuming the due authorization, execution and delivery hereof and
thereof by the Contributor) constitute or will constitute valid and binding
agreements of ATCLLC, enforceable against ATCLLC in accordance with their
respective terms, except as may be limited by bankruptcy, insolvency,
reorganization or other laws affecting creditors' rights generally or equitable
principles.
SECTION 6.4 Consents and Approvals; No Violations.
-------------------------------------
Except for any required filings with and approvals of the applicable
Federal, state or local authority, no filing or registration with, and no
permit, authorization, consent, order or approval of, any Governmental Authority
is necessary or required in connection with the execution and delivery of this
Agreement by ATCLLC or for the consummation by ATCLLC of the transactions
contemplated by this Agreement. Upon obtaining any required approvals, neither
the execution, delivery or performance of this Agreement nor the consummation of
the transactions contemplated hereby by ATCLLC will (i) conflict with or result
in any breach of any provision of the Organizational Documents of ATCLLC, (ii)
result in a violation or breach of, or constitute (with or without due notice or
lapse of time or both) a default (or give rise to any right of termination,
cancellation, acceleration or increased cost) under, or otherwise result in any
diminution of any of the rights of ATCLLC with respect to, any of the terms,
conditions or provisions of any security, note, bond, mortgage, indenture,
license, contract or other instrument or obligation to which ATCLLC is a party
or by which it or any of its properties or assets may be bound or (iii) violate
any order, writ, injunction, decree, statute, rule or regulation applicable to
18
ATCLLC or any of its properties or assets except, in the case of clauses (ii) or
(iii) above, for violations, breaches or defaults that, individually or in the
aggregate, may not reasonably be expected to have a material adverse effect on
the closing of the transactions contemplated by this Agreement, the Contributor,
or ATCLLC and that will not prevent or delay the consummation of the
transactions contemplated hereby.
SECTION 6.5 Litigation.
----------
There are no complaints, claims, suits, actions, mediations, arbitrations
or proceedings or investigations pending or, to the knowledge of ATCLLC,
threatened against or affecting ATCLLC that would, if adversely determined, have
a material adverse effect on ATCLLC's ability to perform its obligations
hereunder, or on the validity or enforceability of this Agreement.
ARTICLE VII
COVENANTS
SECTION 7.1 Conduct of the Business of the Contributor.
------------------------------------------
(a) During the period from the date of this Agreement to the Operations
Date, the Contributor shall conduct all of its operations that concern any of
the Contributed Assets in the ordinary and usual course of business consistent
with Good Utility Practice.
(b) The Contributor and ATCLLC agree that, during the period from the date
of this Agreement to the Closing Date: (i) the Contributor will confer and
coordinate on a regular and frequent basis with one or more representatives of
ATCLLC to discuss the general status of the Contributed Assets and the operation
of same; and (ii) the Contributor will promptly notify ATCLLC of any significant
changes in the Contributed Assets or the Contributor's operation of same.
SECTION 7.2 Project Map.
-----------
The Contributor shall prepare a map showing the location of all
Transmission Lines, and Transmission Substations (a "Project Map") and attach it
as Schedule 7.2.
------------
SECTION 7.3 Consents and Approvals.
----------------------
(a) The Contributor and ATCLLC shall cooperate and use all commercially
reasonable efforts to promptly prepare and file all necessary documentation to
effect all necessary applications, notices, petitions, filings and other
documents, and to use all commercially reasonable efforts to obtain (and will
cooperate with each other in obtaining) any consent, acquiescence,
authorization, order or approval of, or any exemption or nonopposition by, any
Governmental Authority required to be obtained or made by the Contributor or
ATCLLC in connection with this Agreement or the taking of any action
contemplated by this Agreement. ATCLLC shall have the right to review and
approve in advance all characterizations of the information relating to ATCLLC,
on the one hand, and the Contributor shall have the right to review and approve
in advance all characterizations of the information relating to it, on the other
19
hand, which appear in any filing made in connection with the transactions
contemplated by this Agreement, such approvals not to be unreasonably withheld.
The Contributor and ATCLLC shall consult with the other with respect to the
obtaining of all such necessary approvals of Governmental Authorities and shall
keep each other informed of the status thereof.
(b) The Contributor and ATCLLC will use all commercially reasonable
efforts to obtain consents of all other third parties necessary to the
consummation of the transactions contemplated by this Agreement. The Contributor
shall promptly notify ATCLLC of any failure or anticipated failure to obtain any
such consents and, if requested by ATCLLC, shall provide copies of all such
consents obtained by the Contributor to ATCLLC.
SECTION 7.4 Casualty.
--------
The Contributor shall bear the risk of all loss or damage to the
Contributed Assets from all causes through the Operations Date. If any of the
Contributed Assets is damaged by fire or other casualty prior to the Operations
Date, then the parties shall proceed to Closing without a reduction in the
number of Member Units to be issued to the Contributor pursuant to Article IV
hereof and ATCLLC shall receive an assignment of all right, title and interest
in and to any insurance proceeds relating to such casualty but the Contributor
shall remain liable to pay ATCLLC the amount of cash necessary to complete
restoration to the extent the insurance proceeds are not sufficient.
SECTION 7.5 Access to Contributed Assets.
----------------------------
The Contributor shall, from the date of the execution of this Agreement,
until the Closing Date, allow ATCLLC and its designees access at reasonable
times and places to any and all of the Contributed Assets for the purpose of
inspecting same.
SECTION 7.6 Continued Environmental Reporting.
---------------------------------
To the extent that Environmental Information is not available prior to June
30, 2001, the Contributor shall provide ATCLLC with any Environmental
Information with respect to the Contributed Assets as such information is
received or completed by the Contributor.
SECTION 7.7 Continued Conveyance.
--------------------
The parties intend that the Contributed Assets are all of the assets that
the Contributor is required to convey to ATCLLC pursuant to the Reliability 2000
Legislation and PSCW Docket Number 05-EI-119. To the extent the Contributor
retains any assets required to be conveyed under such legislation and related
regulatory orders, the Contributor shall convey such assets to ATCLLC, and to
the extent ATCLLC receives any assets not required to be transferred, ATCLLC
shall re-convey such assets to the Contributor.
20
ARTICLE VIII
CONDITIONS PRECEDENT
SECTION 8.1 Mutual Conditions Precedent.
---------------------------
Each party's obligation to consummate the Closing of this Agreement is
conditioned upon each of the following:
(a) No action, suit, proceeding or investigation by or before any
Governmental Authority shall have been instituted or threatened which may
restrain, prohibit or invalidate any of the transactions contemplated by this
Agreement or which may affect the rights of ATCLLC to operate or control the
Contributed Assets or any part thereof on and after the Operations Date.
(b) All required consents or approvals relating to any Contract, Lease or
other agreement of the Contributor or ATCLLC having been obtained, other than
those which if not obtained, would not, in the aggregate, have a material
adverse effect on ATCLLC, the Contributor or any of the Contributed Assets.
(c) The Contributor and ATCLLC shall have received (i) required
authorization from the PSCW approving by an order the terms of the transfer of
the Contributed Assets as specified in Section 196.485(5)(b) of the Wisconsin
Statutes, and (ii) similar approval from the appropriate regulatory authority of
the jurisdiction in which a Contributed Asset is located, if required.
SECTION 8.2 Conditions Precedent to Obligations of ATCLLC.
---------------------------------------------
All obligations of ATCLLC under this Agreement to be performed on and after
the Closing Date are, at the option of ATCLLC, subject to the satisfaction of
the following conditions precedent on or before the Closing Date, as indicated
below:
(a) Proceedings Satisfactory. All actions, proceedings, instruments,
------------------------
opinions and documents required to carry out this Agreement or incidental
hereto, and all other related legal matters, shall be reasonably satisfactory to
ATCLLC and to counsel for ATCLLC. The Contributor shall have delivered to ATCLLC
on the Closing Date such documents and other evidence as it may reasonably
request in order to establish the consummation of transactions relating to the
execution, delivery and performance by the Contributor of this Agreement, the
transfer and conveyance of the Contributed Assets, the execution of all other
documents or instruments required hereby, and the compliance with the conditions
set forth in this Article VIII, in form and substance reasonably satisfactory to
ATCLLC.
(b) Instruments of Transfer and Other Instruments. The Contributor shall
---------------------------------------------
have delivered to ATCLLC, on or prior to the Closing Date, the following:
(i) the documents and instruments required by Article III;
(ii) title insurance policies meeting the requirements of Section
3.11(a)(i) insuring the Transmission Only Transmission Line Fee Interests
and Transmission Only Transmission Substation Fee Interests, subject only
21
to Permitted Encumbrances, and Surveys with respect to the Transmission
Substation Land Rights; and
(iii) such other documents as may reasonably be requested to
consummate the transfer of the Contributed Assets to ATCLLC.
(c) Representations and Warranties of the Contributor Correct. The
---------------------------------------------------------
representations and warranties made by the Contributor in Article V shall be
(and tender by the Contributor of any documents required to be delivered of the
Closing Date shall constitute a representation by the Contributor as of the
Closing Date and the Operations Date that, except as otherwise specifically
approved in writing by ATCLLC, such representations and warranties of the
Contributor are) true and correct in all material respects on and as of the
Closing Date and the Operations Date with the same force and effect as though
all such representations and warranties had been made on and as of the Closing
Date and the Operations Date.
(d) Compliance with Terms and Conditions. All the terms, covenants,
------------------------------------
agreements and conditions of this Agreement to be complied with and performed by
the Contributor on or before the Closing Date shall have been (and tender by the
Contributor of any documents required to be delivered at the Closing by the
Contributor shall constitute a representation by the Contributor as of the
Closing Date that, except as otherwise specifically approved in writing by
ATCLLC, they have been) complied with and performed in all material respects.
(e) Investment Banking Opinion. ATCLLC shall have received an opinion from
--------------------------
a nationally recognized investment banking firm of its choice that ATCLLC is
able to finance, at a reasonable cost, its start-up costs, working capital and
operating expenses and the cost of any new facilities that are planned.
(f) Certificates. The Contributor shall have delivered or caused to be
------------
delivered to ATCLLC all such certificates, dated as of the Closing Date, as
ATCLLC shall reasonably request to evidence the fulfillment by the Contributor
as of the Closing Date, of the terms and conditions of this Agreement, including
the Foreign Investment in Real Property Tax Act certification and affidavit
substantially in the form of Exhibit 8.2(f) hereto.
(g) Legal Opinion of the Contributor's Counsel. ATCLLC shall receive the
------------------------------------------
favorable opinion of [ ], counsel for the Contributor,
-------------------
addressed to ATCLLC and dated as of the Closing Date, in form and substance
satisfactory to ATCLLC and substantially in the form of Exhibit 8.2(g) hereto.
--------------
SECTION 8.3 Conditions Precedent to Obligations of the Contributor.
------------------------------------------------------
All obligations of the Contributor hereunder to be performed on or after
the Closing Date are, at the option of the Contributor, subject to the
satisfaction of the following conditions on or before the Closing Date, as
indicated below:
(a) Proceedings Satisfactory. All actions, proceedings, instruments,
------------------------
opinions and documents required to carry out this Agreement or incidental hereto
and all other related legal matters shall be reasonably satisfactory to the
Contributor and counsel for the Contributor. ATCLLC shall have delivered to the
22
Contributor on the Closing Date such documents and other evidence as the
Contributor may reasonably request in order to establish the consummation of
transactions relating to the execution, delivery and performance by ATCLLC of
this Agreement, the acquisition and transfer of the Contributed Assets and the
compliance with the conditions set forth in this Article VIII, in form and
substance reasonably satisfactory to the Contributor.
(b) Compliance with Terms and Conditions. All the terms, covenants and
------------------------------------
conditions of this Agreement to be complied with and performed by ATCLLC on or
before the Closing Date shall have been (and the issuance by ATCLLC of Member
Units or any documents required to be delivered at the Closing by ATCLLC shall
constitute a representation by ATCLLC as of the Closing Date that, except as
otherwise specifically approved in writing by the Contributor, they have been)
complied with and performed in all material respects.
(c) Representations and Warranties of ATCLLC Correct. All the
------------------------------------------------
representations and warranties made by ATCLLC in Article VI hereinabove shall be
(and the issuance by ATCLLC of Member Units or any documents required to be
delivered at the Closing shall constitute a representation by ATCLLC as of the
Closing Date and Operations Date that, except as otherwise specifically approved
in writing by the Contributor, such representations and warranties of ATCLLC is)
true and correct in all material respects on and as of the Closing Date and
Operations Date with the same force and effect as though all such
representations and warranties had been made on and as of the Closing Date.
(d) Certificates. ATCLLC shall have delivered to the Contributor all such
------------
certificates, dated as of the Closing Date, as the Contributor shall reasonably
request to evidence the fulfillment by ATCLLC, as of the Closing Date, of the
terms and conditions of this Agreement.
(e) Legal Opinion of ATCLLC's Counsel. The Contributor shall receive the
---------------------------------
favorable opinions of: (i) Xxxxxxx Xxxx & Xxxxxxxxx, LLP, special counsel for
ATCLLC, addressed to the Contributor and dated the Closing Date, in form and
substance reasonably satisfactory to the Contributor, substantially in the form
set forth in Exhibit 8.3(e)(i) hereto and (ii) Hunton & Xxxxxxxx, special
-----------------
counsel to ATCLLC, addressed to the Contributor and dated the Closing Date, in
form and substance reasonably satisfactory to the Contributor, substantially in
the form set forth in Exhibit 8.3(e)(ii) hereto.
------------------
ARTICLE IX
INDEMNIFICATION
SECTION 9.1 Indemnification.
---------------
(a) General.
-------
(i) Except as otherwise provided in Section 9.1(a)(i), (b) or (d),
each party shall indemnify and hold the other harmless for any liabilities,
losses, damages and expenses (including attorneys fees and expenses)
relating to such party's breach of any representation or warranty or
failure to fulfill any covenant or agreement contained herein; provided,
23
however, that neither party shall be liable under this Section 9.1(a)(i) to
the other party in contract, tort, warranty, strict liability or any other
legal theory for any indirect, consequential, incidental, punitive or
exemplary damages.
(ii) Further each party shall indemnify and hold the other harmless
from and against any liabilities, losses, damages and expenses (including
attorney fees and other expenses) caused by the indemnifying party's
negligent or wrongful act on or related to a Joint Use Transmission
Substation Land right or Joint Use Transmission Line Land right or related
to any joint use facility, and incurred by the other party hereto. This
reciprocal hold harmless and indemnity shall apply to any wrongful act or
negligence of the indemnifying party, or its agents, contractors,
employees, invitees or licensees. Acts "related to" in this paragraph means
acts which occur not only on the property or at the facility but in the
course of ingress or egress on or over the lands of the other party or
adjacent lands.
(b) Environmental. The Contributor agrees to indemnify ATCLLC and each
-------------
Person potentially liable through ATCLLC, including its officers, directors,
shareholders, employees and agents, from and against all Environmental
Liabilities relating to Environmental Claims.
(c) Burden of Proof. The Contributor shall bear the burden of proving that
---------------
an Environmental Claim did not arise from an action or omission that occurred
prior to the Operations Date.
(d) Land Rights. The Contributor agrees to indemnify ATCLLC with respect
-----------
to any bona fide dispute regarding (i) the Contributor's right to assign or
convey any parcel or right therein; (ii) the validity or assignability of any
easement or lease; or (iii) the validity of any deed, but only where the
Contributor does not cause title insurance to be provided with respect thereto;
in each case where it would be reasonable and prudent for ATCLLC to exercise its
condemnation power and where such defect has not previously been resolved
through the exercise of prescriptive rights. The indemnification obligation
hereunder shall be limited to the reasonable costs incurred by ATCLLC to condemn
the applicable parcel, including without limitation, the condemnation award,
attorneys fees and other costs incurred relative to such condemnation award and
shall include reasonable internal costs (e.g., ATCLLC staff or internal ATCLLC
counsel expense).
SECTION 9.2 Notice of Proceedings.
---------------------
Each party shall promptly notify the other party of any loss or proceeding
in respect of which such notifying party is or may be entitled to
indemnification pursuant to Section 9.1. Such notice shall be given as soon as
reasonably practicable after the relevant party becomes aware of the claim or
proceeding and that such claim or proceeding may give rise to an indemnification
obligation. The delay or failure of such indemnified party to provide the notice
required pursuant to this Section 9.2 shall not release the other party from any
indemnification obligation which it may have to such indemnified party except
(i) to the extent that such failure or delay materially and adversely affected
the indemnifying party's ability to defend such action or increased the amount
of the claim, and (ii) that the indemnifying party shall not be liable for any
24
costs or expenses of the indemnified party in the defense of the claim, suit,
action or proceeding during such period of failure or delay.
SECTION 9.3 Defense of Claims.
-----------------
(a) Unless and until the indemnifying party acknowledges in writing its
obligation to indemnify the indemnified party to the extent required pursuant to
this Article IX, and assumes control of the defense of a claim, suit, action or
proceeding in accordance with Section 9.3(b), the indemnified party shall have
the right, but not the obligation, to contest, defend and litigate, with counsel
of its own selection, any claim, action, suit or proceeding by any third party
alleged or asserted against such party in respect of, resulting from, related to
or arising out of any matter for which it is entitled to be indemnified
hereunder, and the reasonable costs and expenses thereof shall be subject to the
indemnification obligations of the indemnifying party hereunder.
(b) Upon acknowledging in writing its obligation to indemnify an
indemnified party to the extent required pursuant to this Article IX and paying
all reasonable costs incurred by an indemnified party in its defense, including,
without limitation, legal fees, the indemnifying party shall be entitled, at its
option (subject to Section 9.3(d)), to assume and control the defense of such
claim, action, suit or proceeding at its expense with counsel of its selection,
subject to the prior reasonable approval of the indemnified party.
(c) Neither the indemnifying party nor the indemnified party shall be
entitled to settle or compromise any such claim, action, suit or proceeding
without the prior written consent of the other; provided, however, that after
agreeing in writing to indemnify the indemnified party, the indemnifying party
may, subject to Section 9.3(d), settle or compromise any claim without the
approval of the indemnified party. Except where such consent is unreasonably
withheld, if a party settles or compromises any claim, action, suit or
proceeding in respect of which it would otherwise be entitled to be indemnified
by the other party, without the prior written consent of the other party, the
other party shall be excused from any obligation to indemnify the party making
such settlement or compromise in respect of such settlement or compromise.
(d) Following the acknowledgment of the indemnification and the assumption
of the defense by the indemnifying party pursuant to Section 9.3(b), the
indemnified party shall have the right to employ its own counsel and such
counsel may participate in such action, but the fees and expenses of such
counsel shall be at the expense of such indemnified party, when and as incurred,
unless: (i) the employment of counsel by such indemnified party has been
authorized in writing by the indemnifying party; (ii) the indemnified party
shall have reasonably concluded and specifically notified the indemnifying party
that there may be a conflict of interest between the indemnifying party and the
indemnified party in the conduct of the defense of such action; (iii) the
indemnifying party shall not in fact have employed independent counsel
reasonably satisfactory to the indemnified party to assume the defense of such
action and shall have been so notified by the indemnified party; or (iv) the
indemnified party shall have reasonably concluded and specifically notified the
indemnifying party that there may be specific defenses available to it which are
different from or additional to those available to the indemnifying party or
that such claim, action, suit or proceeding involves or could have a material
adverse effect upon the indemnified party beyond the scope of this Agreement. If
clause (ii), (iii) or (iv) of the preceding sentence shall be applicable, then
25
counsel for the indemnified party shall have the right to direct the defense of
such claim, action, suit or proceeding on behalf of the indemnified party and
the reasonable fees and disbursements of such counsel shall constitute
reimbursable legal or other expenses hereunder.
SECTION 9.4 Subrogation.
-----------
Upon payment of any indemnification by a party pursuant to Section 9.1, the
indemnifying party, without any further action, shall be subrogated to any and
all claims that the indemnified party may have relating thereto, and such
indemnified party shall at the request and expense of the indemnifying party
cooperate with the indemnifying party and give at the request and expense of the
indemnifying party such further assurances as are necessary or advisable to
enable the indemnifying party vigorously to pursue such claims.
ARTICLE X
CLOSING
SECTION 10.1 The Closing Date.
----------------
The closing (the "Closing") shall occur on December 29, 2000 (the "Closing
Date") at the offices of Xxxxxxx Xxxx & Xxxxxxxxx, LLP, which are located at Xxx
Xxxxx Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxx 00000-0000 at 9:00 a.m. or as soon
thereafter as is practicable. The effective date of the contribution and
transfer of the Contributed Assets shall be 12:01 a.m. Central Time on the
Operations Date. On the Closing Date, the parties agree to take the actions
required by this Agreement and all such actions shall be deemed to have occurred
simultaneously.
SECTION 10.2 Closing Costs.
-------------
(a) ATCLLC shall pay the cost of recording the deeds and other instruments
conveying any real property to ATCLLC and the fees of any title company for
handling the Closing.
(b) The Contributor shall pay all state, county and, if applicable,
municipal transfer taxes levied on the Contributed Assets; the costs and
expenses of any title insurance and surveys required hereunder; and all costs
and expenses of releasing liens and security interests on any of the Contributed
Assets.
(c) Each party shall pay the fees and expenses of its own legal counsel.
SECTION 10.3 Prorations.
----------
The following items shall be prorated and adjusted between the parties or
paid at Closing: (i) ad valorem taxes on real property shall be prorated on a
calendar year basis to the Operations Date; (ii) ad valorem taxes on personal
property, if any, shall be prorated on a calendar year basis to the Operations
Date; and (iii) rents and other charges due under a Transmission Substation
Lease, Transmission Line Lease or other leased property that is a Contributed
26
Asset shall be prorated to the Operations Date. If the Closing shall occur
before the tax rates are fixed for any ad valorem taxes to be prorated
hereunder, the apportionment of such taxes shall be upon the basis of the most
recent ascertainable taxes, and shall be re-prorated and adjusted between the
parties upon availability of the actual bills therefor.
SECTION 10.4 Default and Remedies.
--------------------
In the event that the Contributor fails to consummate the transactions
described in this Agreement for any reason other than ATCLLC's default, such
Contributor shall be in default and ATCLLC may obtain specific performance of
this Agreement. If ATCLLC shall fail to consummate the transaction described in
this Agreement in accordance with its terms, except by reason of the
Contributor's default, ATCLLC shall be in default and the Contributor shall be
entitled, as its own exclusive remedies, to obtain specific performance of this
Agreement.
ARTICLE XI
POST CLOSING
SECTION 11.1 Further Assurances.
------------------
Subject to the terms of this Agreement, each of the Contributor and ATCLLC
will use its reasonable efforts to take, or cause to be taken, all action to do,
or cause to be done, all things or execute any documents necessary, proper or
advisable to consummate and make effective the transactions contemplated by this
Agreement. On and after the Closing Date the Contributor and ATCLLC will take
all reasonably appropriate action and execute any documents, instruments or
conveyances of any kind which may be reasonably necessary to carry out any of
the provisions hereof and correct patent errors and omissions.
SECTION 11.2 Survival of Representations, Warranties and Agreement.
-----------------------------------------------------
Regardless of any investigation at any time made by or on behalf of a party
or of any information any party may have, all representations and warranties
shall be unaffected and the parties may rely fully on such representations and
warranties. This Agreement shall survive the Operations Date for a period of
three years; provided, however, that (i) any indemnification obligation pursuant
to Section 9.1(a)(ii) shall survive the Closing indefinitely, (ii) any
indemnification obligation pursuant to Section 9.1(b) shall survive the Closing
for a period of 25 years, and (iii) any indemnification obligation pursuant to
Section 9.1(d) shall survive the Closing for a period of ten years.
SECTION 11.3 Access to Records.
-----------------
(a) The Contributor shall provide ATCLLC with originals or copies of all
design drawings, electrical diagrams, maps, operations and maintenance records,
materials standards, and manuals regarding employee safety and equipment
operation in its possession and necessary or useful for ATCLLC to operate and
maintain the Contributed Assets consistent with Good Utility Practice.
27
(b) Each party may review other information and records relating to the
Contributed Assets in the other party's possession at the business locations
where such other information is normally located, during normal business hours,
and upon reasonable notice. In the alternative, such other information and
records may be provided in electronic form or hard copy, as the parties may
agree.
(c) Neither party shall charge the other for any costs associated with
complying with this Section 11.3 during the first four years following the
Operations Date except as the parties may otherwise agree. Thereafter, the party
seeking information and records of the other party shall pay the reasonable
costs of the other party for providing such information and records or access
thereto.
ARTICLE XII
MISCELLANEOUS
SECTION 12.1 Notices.
-------
All notices, consents, requests, demands, offers, reports or other
communications required or permitted to be given pursuant to this Agreement
shall be in writing and considered properly given or made when personally
delivered to the person entitled thereto when sent by certified or registered
United States mail in a sealed envelope, with postage prepaid, or when sent by
overnight courier, addressed as set forth below. Any party may change its
address by given notice to the other party as aforesaid.
If to ATCLLC:
American Transmission Company LLC
c/o ATC Management Inc.
-----------------------------
Milwaukee, Wisconsin
Attention:
-----------------------------
With a copy to:
-----------------------------
-----------------------------
-----------------------------
Attention:
-----------------------------
If to the Contributor:
-----------------------------
-----------------------------
-----------------------------
Attention:
-----------------------------
28
With a copy to:
-----------------------------
-----------------------------
-----------------------------
Attention:
-----------------------------
SECTION 12.2 Entire Agreement.
----------------
This Agreement embodies the entire understanding and agreement between the
parties concerning the Contributed Assets, and supersedes any and all prior
negotiations, understandings or agreements with respect thereto.
SECTION 12.3 Interpretation and Construction.
-------------------------------
The headings and captions in this Agreement are inserted for convenience
and identification only and are in no way intended to define, limit or expand
the scope and intent of this Agreement or any provision hereof. The references
to Sections or Articles in this Agreement are to Sections and Articles of this
Agreement, except where otherwise indicated. Where the context so requires, the
masculine shall include the feminine and the neuter, and singular shall include
the plural.
SECTION 12.4 Counterparts.
------------
This Agreement may be executed in multiple counterpart copies, each of
which shall be considered an original and all of which shall constitute one and
the same instrument.
SECTION 12.5 Binding on Successors and Assignment.
------------------------------------
This Agreement and all of the terms and provisions hereof shall be binding
upon, and inure to the benefit of, the parties and their respective successors
and assigns. ATCLLC shall be entitled to assign this Agreement to any Person
that acquires the Contributed Assets.
SECTION 12.6 Governing Law.
-------------
This Agreement, and the rights and obligations of the parties hereto shall
be governed by and construed in accordance with the laws of the State of
Wisconsin, except insofar as the laws of another jurisdiction require the
application of such jurisdiction's laws with respect to matters affecting real
property located in such other jurisdiction.
SECTION 12.7 Severability.
------------
If any provision of this Agreement or the application thereof to any Person
or circumstance shall, to any extent, be held to be invalid or unenforceable in
any jurisdiction, the validity and enforceability of the Agreement or the
application of such provision to any other Persons or circumstances shall not be
affected thereby, and each provision of this Agreement shall be valid and
enforceable to the extent permitted by law in every jurisdiction.
29
SECTION 12.8 Amendments and Waivers.
----------------------
This Agreement may be amended only by a written instrument executed by
ATCLLC and the Contributor. Either party may extend the time for or waive the
performance of any obligation of the other party, waive any inaccuracies in the
representations or warranties of such party, or waive compliance by such party
with any of the terms and conditions contained in this Agreement. Any such
extension or waiver shall be in writing and executed by the party granting the
waiver.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
30
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives as of the date first set forth
above.
AMERICAN TRANSMISSION COMPANY LLC
By:ATC MANAGEMENT INC., its Manager
By:
------------------------------------
Name:
Title:
[CONTRIBUTOR]
By:
------------------------------------
Name:
Title:
SCHEDULES
3.2 Identification of Transmission Lines
(a) Transmission Only Transmission Lines
(i) Fee Interests
(ii) Easements
(iii) Leases
(b) Incidental Use Transmission Lines
(i) Fee Interests
(ii) Easements
(iii) Leases
(c) Joint Use Transmission Lines
(i) Fee Interests
(ii) Easements
(iii) Leases
3.3 Identification of Transmission Substations
(a) Transmission Only
(i) Fee Interests
(ii) Easements
(iii) Leases
(b) Joint Use Transmission Substations
(i) Fee Interests
(ii) Easements
(iii) Leases
3.4 Permits
1
3.5(a) Contracts
3.5(b) Pole Attachments
3.5(c) Agreements regarding Fiber Optic Cable
3.6 Construction Work In Progress
3.7 Personal Property
3.8 Inventory
3.9 Warranties
3.12 Documented Construction Projects
3.13 [Stoughton Operations Center]
5.4 Third Party Consents
5.5 Litigation
5.7 Leases other than Transmission Line Easements and Transmission Substation
Easements
7.2 Project Map
2
EXHIBITS
3.2 Transmission Line Conveyance Instruments
(a) Transmission Only
(i) Form of Deed
(ii) Form of Easement Assignment
(iii) Form of Lease Assignment
(b) Incidental Use
(i) Form of Deed
(ii) Form of Easement Assignment
(iii) Form of Lease Assignment
(c) Joint Use
(i) Form of Grant of Easement
(ii) Form of Easement Assignment
(iii) Form of Lease Assignment
(d) Xxxx of Sale for Transmission Facilities
3.3 Transmission Substation Conveyance Instruments
(a) Transmission Only
(i) Form of Deed
(ii) Form of Easement Assignment
(iii) Form of Lease Assignment
(b) Joint Use
(i) Form of Grant of Easement
(ii) Form of Easement Assignment
(iii) Form of Lease Assignment
1
(c) Xxxx of Sale for Substation Transmission Facilities
3.4 Assignment of Permits
3.5(a) Assignment of Contracts
3.5(b) Form of Pole Attachment Agreement
3.5(c) Form of Agreement regarding Fiber Optic Cable
3.6 Construction Work in Progress
(a) Form of Deed
(b) Form of Xxxx of Sale
(c) Form of Assignment
3.7 Xxxx of Sale for Personal Property
3.8 Xxxx of Sale for Inventory
3.9 Form of Warranty Assignment
3.11(b) Form of Escrow Agreement-Subdivided Parcel
3.13 [Deed and Xxxx of Sale for Stoughton Operations Center]
8.2(f) FIRPTA Certificate
8.2(g) Opinion of Contributor's Counsel
8.3(e)(i) Opinion of Xxxxxxx Xxxx Friedrich, LLP
8.3(e)(ii) Opinion of Hunton & Xxxxxxxx
2
