Closing Document No. 2.1
SEVENTH AMENDMENT TO AGREEMENT TO PURCHASE AND SELL
THIS SEVENTH AMENDMENT TO AGREEMENT TO PURCHASE AND SELL (this
"Amendment") is made as of the 30th day of June 1995, by and between the
City of Santa Fe, New Mexico ("Purchaser"), and Public Service Company of
New Mexico ("Seller"). Unless otherwise defined herein, any term which its
initial letter capitalized shall have the meaning ascribed to it in that
certain Agreement to Purchase and Sell (the "Agreement"), dated February 28,
1994, by and between Purchaser and Seller, as amended by that certain First
Amendment to Agreement to Purchase and Sell (the "First Amendment"), dated
April 29, 1994, that certain Second Amendment to Agreement to Purchase and
Sell (the "Second Amendment"), dated June 29, 1994, that certain Third
Amendment to Agreement to Purchase and Sell (the "Third Amendment"), dated
June 30, 1994, that certain Fourth Amendment to Agreement to Purchase and
Sell (the "Fourth Amendment"), dated August 30, 1994, that certain Fifth
Amendment to Agreement to Purchase and Sell (the "Fifth Amendment"), dated
October 31, 1994, and that certain Sixth Amendment to Agreement to Purchase
and Sell (the "Sixth Amendment"), dated December 31, 1994. All references
to the Agreement shall be as amended by the First Amendment, Second
Amendment, Third Amendment, Fourth Amendment, Fifth Amendment and Sixth
Amendment.
RECITALS
WHEREAS, Purchaser and Seller executed the First Amendment, Third
Amendment, Fourth Amendment, Fifth Amendment and Sixth Amendment to, among
other things, extend the time for performance or exercise of certain of
Seller's and Purchaser's rights under the Agreement; and
WHEREAS, Purchaser and Seller desire to extend further the time for
performance or exercise of certain of those rights, and to amend and clarify
their respective rights and obligations by further amending the Agreement
and confirming certain matters, all as provided in this Amendment.
NOW, THEREFORE, in consideration of the foregoing, the mutual promises
and agreements contained herein and other good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, the parties
hereto agree as follows:
AGREEMENT
1. Materials and Supplies, and Service Agreements shall not be
included in the Assets and shall be Excluded Assets. Accordingly, Section
1.1.4 of the Agreement is hereby amended to delete the phrases "Materials
and Supplies," and "Service Agreements," and Section 1.1.21 of the Agreement
is hereby amended to insert the phrase "Materials and Supplies, Service
Agreements, Plans, those contracts listed on Schedule 1.1.21," immediately
after the phrase "Common Plant,". Section 1.1.14 and Section 11.2.5 of the
Agreement are hereby amended to delete the phrase "Service Agreements"
wherever it appears. In the last sentence of Section 1.1.4 the phrase "or
Excluded Obligations" is hereby added after the phrase "Excluded Assets".
2. Section 1.1.73 of the Agreement is hereby amended to read:
1.1.73 UCC Filings. As defined in Section 7.7.
3. Section 1.1.77 of the Agreement is hereby amended to read:
1.1.77 Transactions. The purchase and sale of the
Assets and the execution of the Operating Agreement
pursuant to this Agreement.
4. Section 3.2.1 of the Agreement is hereby amended to substitute
the word "two (2)" for the word "fifteen (15)".
5. Section 5.8.2 of the Agreement is hereby amended to insert the
following phrase in the second sentence immediately after the phrase "To
Seller's Knowledge," and in the third sentence immediately before the phrase
"are all the certificates . . .":
. . . except for the possible requirement for a
special use permit from the United States Bureau of
Land Management as described in Schedule 5.8.1,
. . .
6. Sections 5.16.3(A)(2), (3) and (4), 5.16.3(B)(v), 5.16.4, 5.16.6
and 5.16.7 of the Agreement are hereby amended to add the following phrase:
. . . provided, however, that the parties expressly
acknowledge that the SEO has proposed changes to
its dedication policy that may affect existing and
future dedications and offset requirements and that
such changes in policy, if adopted, and any
resulting effects on dedications and offset
requirements will not constitute a breach of any
warranty or representation made by Seller in this
Agreement.
7. Section 5.16.3(A)(2) of the Agreement is further amended to
insert the phrase:
. . . subject to claims by the SEO, the New Mexico
Attorney General's office or any other third party
that notice of the SEO application resulting in
Permit No. RG-20516 et al. was in any way
insufficient or illegal, and . . .
between the phrase "10,000 acre feet of water per year," and the phrase
"subject to the operation of New Mexico law".
8. Section 5.16.3(A)(8) is hereby amended to insert the following
phrase at the beginning of clauses (iii) and (iv):
Except for any use of water appropriated from the
Country Club Estates well prior to December 20,
1994, which would not be permitted by the cease and
desist order set forth in the letter of that date
from the SEO to SDCW, . . .
In addition, Section 5.16.4 is hereby amended to insert the same phrase
immediately preceding the phrase "all conditions of approval".
9. Purchaser and Seller hereby amend Section 7.4.2 of the Agreement
to provide that (i) the Inspection Deadline is hereby extended to June 30,
1995, (ii) Purchaser's right to terminate the Agreement pursuant to Section
7.4.2 shall expire if not exercised on or before June 30, 1995, (iii) if
Purchaser elects not to terminate the Agreement pursuant to Section 7.4.2,
Purchaser shall deliver a Waiver Notice to Seller on or before June 30,
1995, and (iv) the deadline for Purchaser to notify Seller of an
Environmental Condition shall be extended until June 30, 1995. If Purchaser
fails to deliver a Waiver Notice to Seller on or before June 30, 1995,
Purchaser shall conclusively be deemed to have elected to terminate the
Agreement. The effect of such a termination shall be as provided in Section
7.4.2. If Purchaser notifies Seller of an Environmental Condition on or
before June 30, 1995, Purchaser and Seller shall have their respective
rights to correct such matters, indemnify Purchaser, pay costs, remediate,
or undertake some other alternative, in the case of Seller, or waive such
matters or terminate the Agreement, in the case of Purchaser, on the time
frames set forth in Section 7.5.2 of the Agreement. Even though this
Amendment is executed after February 28, 1995, the parties intend that it
be effective as of February 28, 1995, and accordingly, the Agreement shall
not be deemed to have terminated pursuant to Section 7.4.2 of the Agreement
on or after February 28, 1995.
10. Purchaser and Seller hereby amend Section 7.6 of the Agreement
to extend the Governmental Permit Deadline to June 30, 1995; provided,
however, Purchaser's right to terminate the Agreement pursuant to Section
7.6 shall terminate unless Purchaser notifies Seller, on or before June 30,
1995, that it has determined that it will be unable to obtain the
transference or issuance of any Governmental Permits or Non-Transferrable
Governmental Permits necessary to use the Assets as they currently are being
used or to operate the Business as it currently is being operated.
11. The amount "$5,900,000" appearing in Section 5.11(ix) and
Section 7.1.1 of the Agreement is hereby increased to "$9,000,000".
12. The phrase "Within 90 Days" in the first sentence of
Section 7.2.1 of the Agreement is hereby amended to "Not later than the
Closing Date".
13. Sections 9.7.2 and 11.2.2 of the Agreement and Schedule 9.7.2,
all relating to the Cerro Gordo Road Easement, are hereby deleted in their
entirety. The phrase "Reserved for future use" shall be substituted for the
text of Section 7.2. A new Section 11.2.2 is hereby added to the Agreement,
providing:
11.2.2 UHF Communication Link Easement. The
easement required by Section 9.7.3 of this
Agreement, executed and acknowledged by Seller and
accepted by Purchaser.
14. Section 11.2.11 of the Agreement is hereby amended to read:
11.2.11 Seller's Required Consents. Copies of
Seller's Required Consents.
15. Section 11.2.21 of the Agreement is hereby amended to read:
11.2.21 Updated Title Insurance Commitment and
Other Documents. The updated title insurance
commitment and ALTA closing protection letter in
accordance with Section 7.3.1 of the Agreement, and
such other documents to be delivered by Seller
hereunder, or as Purchaser or its counsel may
reasonably request to carry out the purposes of
this Agreement.
16. The text of Section 11.3.9 of the Agreement is hereby deleted
in its entirety, and the phrase "Reserved for future use" is inserted in
lieu thereof.
17. Replace Section 11.4.1(i) in its entirety with the following:
"i. Notwithstanding anything to the contrary
herein, (A) real estate and personal property taxes
shall be prorated on the basis of the 1994
valuations and the 1994 mill levies, and shall be
subject to readjustment as soon as the actual 1995
valuations and mill levies are conclusively
determined, and (B) Seller shall be responsible to
pay at or prior to Closing any special assessments
which may be a lien on the Property. As the owner
of real or personal property pursuant to this
Agreement, the Purchaser may have no or reduced
(with respect to the liability of Seller) real or
personal property tax liability. No proration of
real or personal property tax liability shall make
the Purchaser liable for any tax not owed by the
Purchaser."
18. Section 9.3 of the Agreement is hereby amended to change "11:59
p.m. (Mountain Standard Time)" to "12:01 a.m. (Mountain Daylight Time)".
19. Schedule 9.8 of the Agreement (the Operating Agreement) is
hereby amended and restated in the form attached hereto as Exhibit "A".
20. Without waiving any of Purchaser's rights with respect to
Encumbrances, Seller shall remain liable for, and hold harmless and
indemnify Purchaser for, any mechanic's liens for work done or materials
furnished prior to the Closing Date with respect to (i) the property
identified as the "Agua Fria Booster and Well" on Schedule 1.1.38A-1, and
(ii) the property being acquired by City on the date hereof pursuant to that
certain Agreement Relating to the Sale of Real Estate, dated February 28,
1994, between Seller and Purchaser.
21. Section 14.9 of the Purchase Agreement is hereby amended by
adding the following sentence at the end of the section:
Without limiting the generality of the foregoing,
in the event that Seller or Purchaser discover
additional Assets, including, but not limited to,
Real Property, easements, licenses and
rights-of-way, that were not specifically included
in any of the transfer documents set forth in
Section 11.2 hereof, then (i) in the case of such
a discovery by Seller, Seller shall immediately
notify Purchaser and, upon the request of
Purchaser, deliver to Purchaser the appropriate
transfer document duly executed and, if
appropriate, ready for recordation, and (ii) in the
case of discovery by Purchaser and notification by
Purchaser to Seller, Seller shall immediately
delivery to Purchaser the appropriate transfer
document duly executed and, if appropriate, ready
for recordation.
Subject to Seller's obligations under Section 14.9 of the Agreement, Seller
and Purchaser acknowledge and affirm that the transfer documents executed
and delivered at Closing are intended to convey all of the Assets, but only
the Assets, which Seller is required to convey to Purchaser pursuant to the
Purchase Agreement.
22. Section 11.2.4 of the Agreement is amended in its entirety to
read:
"Assignment of Real Estate Leases. An assignment
of all of Seller's right, title and interest in and
to Seller's interests in real property in the form
attached as Schedule 11.2.4, duly executed and
acknowledged by Seller and Purchaser assigning to
Purchaser the interests of Seller in Real Property
subject thereto, together with the original
executed copy of each lease."
23. Seller, at Purchaser's request, is not making express exception
in the deeds delivered pursuant to Section 11.2.1 of the Agreement for the
Permitted Encumbrances listed in Schedule 1.1.48. Purchaser acknowledges
and affirms, nevertheless, that (i) all matters listed in Schedule 1.1.48
are Permitted Encumbrances, (ii) notwithstanding the special warranty
covenants from Seller in applicable deeds Purchaser is accepting title to
the Assets for itself and its successors and assigns subject to the
Permitted Encumbrances, and (iii) the Permitted Encumbrances shall never
constitute a violation or breach in any respect of Seller's special warranty
covenants by Purchaser or by any person claiming by, through or under
Purchaser.
24. Purchaser, as of the date of this Amendment, hereby waives its
rights of termination under Sections 7.4.2, 7.5.2, and 7.6 of the Agreement.
This paragraph shall constitute Purchaser's Waiver Notice under Section
7.4.2 of Agreement.
25. Purchaser hereby waives any applicable requirement under Section
7.1.2 for Purchaser's prior written consent to the making of any contract
listed on the most recent updated version of Schedule 1.1.14 to the
Agreement provided to Purchaser, to the making of any amendments to any such
contracts disclosed to Purchaser prior to the date of this Amendment and to
the cancellation of any contract if such cancellation was disclosed to
Purchaser prior to the effective date of this Amendment. As to the
contracts listed on the most recent updated version of Schedule 1.1.14 of
Agreement, Purchaser further acknowledges that, to its knowledge, Seller has
complied with the notice requirements of Section 7.1.6 of the Agreement.
26. Seller or Purchaser's failure to comply with the terms of this
Amendment shall be a breach of that Section of the Agreement to which such
failure relates and Purchaser or Seller, as the case may be, shall have all
rights and remedies provided to Purchaser or Seller, as the case may be, by
the Agreement for such breach. As amended by this Amendment and by the
First Amendment, Second Amendment, Third Amendment, Fourth Amendment, Fifth
Amendment and Sixth Amendment, the Agreement is hereby ratified and declared
to be in full force and effect.
IN WITNESS WHEREOF, the undersigned have executed this Seventh
Amendment to Agreement to Purchase and Sell as of the date first above
written.
PUBLIC SERVICE COMPANY OF NEW MEXICO,
Seller
By:
---------------------------------
M. PHYLLIS BOURQUE
Senior Vice President,
Energy Services
CITY OF SANTA FE, NEW MEXICO,
Purchaser
By:
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DEBBIE JARAMILLO, Mayor
ATTEST:
By:
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YOLANDA Y. VIGIL, City Clerk