EXHIBIT 10.15
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 as of December 15, 2000
TABLE OF CONTENTS
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
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...........................................................................29
ASSET CONTRIBUTION AGREEMENT
----------------------------
THIS ASSET CONTRIBUTION AGREEMENT is executed as of December
15, 2000, by and between American Transmission Company LLC, a
Wisconsin limited liability company ("ATCLLC"), and [Name of
Contributing Utility], a __________________ 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
------------
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. Sections 196.49 or 196.491.
"Encumbrance" means any mortgage, pledge, lien, option,
conditional sale agreement, encumbrance, security interest, claim
or charge of any kind.
"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. Sections 7401 to 7671q, the Clean Water Act, also known as the
Federal Water Pollution Act, 33 U.S.C. Sections 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. Sections 2601 to 2692, the Federal Insecticide,
Fungicide and Rodenticide Act, Section 7 U.S.C. Sections 136 to 136y, the
Safe Drinking Water Act, 42 U.S.C. Sections 300f et seq., the Surface
Mining Control and Reclamation Act, 30 U.S.C. Section 1201, 1202, and
1211, the Comprehensive Environmental Response, Compensation and
Liability Act, of 1980 ("CERCLA"), 42 U.S.C. Sections 9061 to 9675, as
amended by the Superfund Amendment and Reauthorization Act of
1986, ("SARA"), Public Law 99-499, 100 Stat. 1613, the Emergency
Planning and Community Right to Know Act ("EPCRA"), 42 U.S.C. Sections
11001 to 11050, the Solid Waste Disposal Act, as amended by the
Resource Conservation and Recovery Act, ("RCRA"), 42 U.S.C. Section
6901 to 6992k, the Occupational Safety and Health Act as amended,
("OSHA"), 29 U.S.C. Section 655 and Section 657, the National Historic
Preservation Act ("NHPA"), 16 U.S.C. Sections 470 et seq., the
Hazardous Materials Transportation Act, 49 U.S.C. Section 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.
"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 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.
"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.
-------------------------------------
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 Method.
---------------------------------------------------------------
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 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 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 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.
SECTION 2.3 Classification of Transmission Line Land Rights by
--------------------------------------------------
Parcel-by-Parcel Method.
------------------------
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 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 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.
------------------------------------------------------
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 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 "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.
----------------------------
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. If ATCLLC and the
- ------------- -------------
Contributor are unable to agree on the classification of a
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.
-----------------------
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.
-------------------
The Contributor shall contribute the Transmission Lines
identified in Schedule 3.2 as follows:
------------
(a) Transmission Only Transmission Line Land Rights.
-------------------------------------------------------------
Transmission Only Transmission Line Land Rights shall be
contributed as follows:
(i) Transmission Only Transmission Line Fee Interests. Subject
---------------------------------------------------
to the provisions of Section 3.12, all Transmission Only
Transmission Line Fee Interests identified in Schedule
---------
3.2(a)(i) shall be conveyed to ATCLLC pursuant to a deed
---------
substantially in the form of the deed attached as Exhibit
-------
3.2(a)(i);
----------
(ii) Transmission Only Transmission Line Easements. All
-----------------------------------------------------
Transmission Only Transmission Line Easements identified in
Schedule 3.2(a)(ii) shall be assigned to ATCLLC pursuant to
--------------------
an assignment substantially in the form of the assignment
attached as Exhibit 3.2(a)(ii);
------------------
(iii) Transmission Only Transmission Line Leases. All
------------------------------------------------------
Transmission Only Transmission Line Leases identified in
Schedule 3.2(a)(iii) shall be assigned to ATCLLC pursuant to
----------------------
an assignment substantially in the form of the assignment
attached as Exhibit 3.2(a)(iii).
-------------------
(b) Incidental Use Transmission Line Land Rights. Incidental
-------------------------------------------------
Use Transmission Line Land Rights shall be contributed as follows:
(i) Incidental Use Transmission Line Fee Interests. All
-------------------------------------------------------
Incidental Use Transmission Line Fee Interests identified in
Schedule 3.2(b)(i) shall be conveyed to ATCLLC pursuant to a
-------------------
deed substantially in the form of the deed attached as
Exhibit 3.2(b)(i);
------------------
(ii) Incidental Use Transmission Line Easements. All Incidental
---------------------------------------------
Use Transmission Line Easements identified in Schedule
--------
3.2(b)(ii) shall be assigned to ATCLLC pursuant to an
----------
assignment substantially in the form of the assignment
attached as Exhibit 3.2(b)(ii);
-------------------
(iii) Incidental Use Transmission Line Leases. All Incidental Use
-----------------------------------------
Transmission Line Leases identified in Schedule 3.2(b)(iii)
---------------------
shall be assigned to ATCLLC pursuant to an assignment
substantially in the form of the assignment attached as
Exhibit 3.2(b)(iii).
--------------------
(c) Joint Use Transmission Line Land Rights. Joint Use
------------------------------------------------
Transmission Line Land Rights shall be contributed as follows:
(i) Joint Use Transmission Line Fee Interests. The Contributor
--------------------------------------------
shall 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 to a grant of easement
---------------------
substantially in the form of the grant of easement attached
as Exhibit 3.2(c)(i);
------------------
(ii) Joint Use Transmission Line Easements. The Contributor
-------------------------------------------
shall assign certain rights to and under the Joint Use
Transmission Line Easements identified in Schedule
--------
3.2(c)(ii) to ATCLLC pursuant to an assignment substantially
----------
in the form of the assignment attached as Exhibit 3.2(c)(ii);
--------------------
(iii) Joint Use Transmission Line Leases. The Contributor shall
-------------------------------------
assign certain rights to and under the Joint Use
Transmission Line Leases identified in Schedule 3.2(c)(iii)
--------------------
to ATCLLC pursuant to an assignment substantially in the
form of the assignment attached as Exhibit 3.2(c)(iii).
--------------------
(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 Bill of Sale substantially in the form of the Bill
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);
----------
(ii) Transmission Only Transmission Substation Easements. All
-------------------------------------------------------
Transmission Only Transmission Substation Easements
identified in Schedule 3.3(a)(ii) shall be assigned to
--------------------
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 bill 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.
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
---------------
bill 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 bill 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 Bill 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 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.
(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.
(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 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.
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:
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 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 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.
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 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
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) Michael Best & Friedrich,
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 & Williams,
------------------
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)(ii), (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, 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 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 or invitees. 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 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 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 Michael Best & Friedrich,
LLP, which are located at One South Pinckney Street, Madison,
Wisconsin 53701-1806 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 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.
(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.
N16 W23217 Stone Ridge Drive
Waukesha, WI 53187
Attention: Walter Woelfle
If to the Contributor:
_____________________________
_____________________________
_____________________________
Attention: _____________________________
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.
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]
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
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
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) Bill 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
(c) Bill 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 Bill of Sale
(c) Form of Assignment
3.7 Bill of Sale for Personal Property
3.8 Bill of Sale for Inventory
3.9 Form of Warranty Assignment
3.11(b) Form of Escrow Agreement-Subdivided Parcel
3.13 [Deed and Bill 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 Michael Best Friedrich, LLP
8.3(e)(ii) Opinion of Hunton & Williams