EXHIBIT 10.1
CURE AND ASSUMPTION AGREEMENT
This CURE AND ASSUMPTION AGREEMENT ("Agreement"), by and among El Paso
Electric Company, a Texas corporation ("EPE"), Debtor and Debtor In
Possession in its proceedings under Chapter 11 of Title 11 of the United
States Code, 11 U.S.C. Sections 101-1330 (the "Code") currently pending in
the United States Bankruptcy Court for the Western District of Texas (the
"Court"), Case No. 92-10148 FM (the "Case"); each of Arizona Public Service
Company ("APS"), Salt River Project Agricultural Improvement and Power
District ("SRP"), Southern California Edison Company ("SCE"), Public Service
Company of New Mexico ("PNM"), Southern California Public Power Authority
("SCPPA"), and the Department of Water and Power of the City of Los Angeles
("LADWP"), as the other participants, along with EPE (the "Participants"),
in the Arizona Nuclear Power Project ("ANPP") pursuant to the ANPP
Participation Agreement, dated as of August 23, 1973, as amended by
Amendment Nos. 1 through 13 thereto (the "Participation Agreement"); each of
APS, SRP, SCE, PNM, SCPPA, and LADWP, as the other parties, along with EPE
(the "Switchyard Participants"), to the ANPP High Voltage Switchyard
Participation Agreement, dated as of August 20, 1981, as amended (the
"Switchyard Agreement"); and each of APS, SRP, and PNM, as the other
parties, along with EPE (the "Valley Transmission Participants"), to the
ANPP Valley Transmission System Participation Agreement, dated as of August
20, 1981, as amended (the "Valley Transmission Agreement"), is entered into
as of November 19, 1993.
Capitalized terms used in this Agreement, unless otherwise defined
herein, shall have the meanings assigned to such terms in the Participation
Agreement. When used herein, the term "Other Parties" shall mean each and
all of the parties to this Agreement other than EPE, and the term "Other
Participants" shall mean each and all of the Participants other than EPE.
Where used herein the term "Assume" shall mean "assume" as such term is used
in Section 365 of the Code. The terms "include" and "including" are not
limiting, regardless of whether accompanied by the additional words "but not
limited to," or words of similar impact.
R E C I T A L S:
a. On January 8, 1992 (the "Petition Date"), EPE filed its petition
for relief under Chapter 11 of the Code in the Court.
b. On February 13, 1992, the Court approved a stipulation (the
"Stipulation") between EPE and APS, as Operating Agent, which among other
things allocated $9,255,000 of the invoices previously rendered to EPE under
the Participation Agreement as pre-petition general unsecured claims of the
Other Participants.
c. On September 9, 1992, EPE filed a complaint which commenced
Adversary Proceeding No. 92-1285FM (including all related proceedings and
contested matters, if any, the "Lease Litigation") before the Court.
d. EPE has proposed its "Modified Third Amended Plan of
Reorganization," as corrected September 15, 1993 (together with any modified
or amended plan proposed by EPE providing for the acquisition of EPE by
Central and South West Corporation ("CSW") by means of a merger between EPE
and a wholly-owned, special purpose subsidiary of CSW, with EPE as the
surviving corporation ("Reorganized EPE"), generally referred to as the
"Plan"). For purposes of this Agreement, references to the "Effective Date"
shall mean the Effective Date as provided in the Plan, and references to EPE
will be deemed to refer also to Reorganized EPE with respect to any period
on or after the Effective Date, notwithstanding any separate references to
Reorganized EPE herein.
e. EPE and the Other Parties hereto desire to provide in this
Agreement for the terms and conditions under which EPE would cure its
defaults under and Assume the Participation Agreement, the Switchyard
Agreement, the Valley Transmission Agreement, and related contracts
described or scheduled herein.
f. The Other Participants believe that the Participation Agreement
and related agreements are contracts and/or agreements that are not capable
of being Assumed pursuant to Code Section 365 without the consent of the
Other Participants; EPE disagrees and believes that said agreements are
subject to assumption under Code Section 365; notwithstanding said
positions, the Parties have agreed to settle and provide that Assumption
will be allowed pursuant to the terms of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
contained herein, and subject to the terms and conditions stated herein, the
parties hereto agree as follows:
1. EPE Assumption. Subject to all of the terms and conditions set
forth in this Agreement, EPE agrees to Assume, on the Effective Date,
the Participation Agreement, the Switchyard Agreement, the Valley
Transmission Agreement, and to the extent that EPE is not precluded
from such assumption, the following executory agreements and unexpired
leases relating to the ownership, operation, and maintenance of ANPP,
the ANPP High Voltage Switchyard, and/or the "Transmission System," as
such term is defined in the Valley Transmission Agreement (the "Valley
Transmission System"):
(a) all of the Project Agreements;
(b) all Nuclear Fuel Agreements, and all nuclear fuel agreements
relating to the purchase, sale, lease, transfer, disposition,
storage, transportation, mining, conversion, milling, enrichment,
processing, fabrication, and reprocessing of any Nuclear Fuel for
use in, used in or removed from a Reactor entered into by the
Project Manager or the Operating Agent on behalf of EPE or
pursuant to which EPE is a party, excluding the "RGRT Agreement"
(as such term is defined in the Plan);
(c) all agreements between EPE (or EPE and the Other
Participants or any of them) and any third party for land, land
rights, or water rights relating to ANPP;
(d) certain agreements listed on Schedule 1 hereto relating to
tax or other indemnification obligations between EPE and the Other
Participants, or any of them (the "Tax Agreements");
(e) certain agreements listed on Schedule 2 hereto entered into
pursuant to or relating to the Switchyard Agreement and/or the
Valley Transmission Agreement or relating to the ANPP High Voltage
Switchyard and/or the Valley Transmission System or pursuant to
which the ANPP High Voltage Switchyard and/or the Valley
Transmission System are constructed, operated, or owned by the
participants; and
(f) certain agreements listed on Schedule 3 hereto entered into
pursuant to or relating to the Participation Agreement or relating
to ANPP or pursuant to which ANPP is constructed, operated, or
owned by the Participants
(collectively, the "ANPP Assumed Agreements"). Notwithstanding any
provision of this Agreement to the contrary, EPE shall have no
obligation to assume the Palo Verde Leases, and the Palo Verde Leases
shall not constitute ANPP Assumed Agreements. EPE agrees that the Palo
Verde Leases do not include the Tax Agreements. After the Effective
Date, nothing in the Case, the Plan, or any order confirming the Plan
(the "Confirmation Order") shall entitle EPE to interfere with, oppose,
or deny prior operating procedures and actions taken, conducted, and
approved by the Participants prior to the Effective Date, except in
accordance with procedures provided under the ANPP Assumed Agreements.
Any cure and Assumption by EPE of the ANPP Assumed Agreements shall be
deemed to have occurred only upon the Effective Date.
2. EPE Payments under the ANPP Assumed Agreements. On, or promptly
following, the date of entry of the Confirmation Order (the
"Confirmation Date"), subject to all of the terms and conditions set
forth in this Agreement, as a condition of its Assumption of the ANPP
Assumed Agreements, EPE will pay the following amounts to the following
persons:
(a) the amount of $9,255,000.00 under the Participation Agreement
to the Operating Agent for the benefit of all of the Other
Participants;
(b) the amount of $38,658.50 under the Switchyard Agreement, to
SRP, as operating agent under the Switchyard Agreement, for the
benefit of all of the Switchyard Participants, other than EPE; and
(c) the amount of $12,933.47 under the Valley Transmission
Agreement to SRP, as operating agent under the Valley Transmission
Agreement, for the benefit of all of the Valley Transmission
Participants, other than EPE.
If this Agreement is terminated pursuant to Sections 8(c) or 11 hereof,
the amounts specified in subparagraphs (a) through (c) of this Section
2 shall be returned and repaid by the Operating Agent, SRP as operating
agent under the Switchyard Agreement, and SRP as operating agent under
the Valley Transmission Agreement, respectively, to EPE without
interest promptly upon receipt of a wire transfer number evidencing
transfer from EPE of the amounts described in Section 3(i) of this
Agreement.
3. Parties' Agreement To Actions. The parties agree to the following
actions and agreements:
(a) to the Assumption by EPE of the ANPP Assumed Agreements on
the Effective Date without further requirements or steps to comply
with Section 365 of the Code, and the Other Parties hereby waive
as of the Effective Date, any otherwise applicable issues as to
compliance with Section 365; provided, however, that EPE may not
so Assume unless it (i) has paid its participant-share of all
outstanding and due invoices and assessments presented by the
operating agents under or pursuant to the Participation Agreement,
the Switchyard Agreement, and the Valley Transmission Agreement;
(ii) is in compliance with all payment, funding, and any other
material obligations pursuant to Section 8A.7.2 of the
Participation Agreement; and (iii) otherwise has complied in all
material respects with the terms and conditions of this Agreement;
provided, however, that unless any of the Other Parties informs
EPE by written notice, on or before the Confirmation Date, that
EPE is not in compliance with this Agreement, and specifies the
nature of such noncompliance, EPE shall be deemed to be in
compliance with this Agreement as of the Confirmation Date;
(b) that EPE's payment of the amounts set forth in Section 2 of
this Agreement in compliance with said Section shall constitute a
complete and full accord, satisfaction, settlement, and cure of
all payment defaults of EPE (as to which EPE is the sole
defaulting Participant) existing and known by the Other Parties as
of the date of a Court order approving this Agreement (the "Court
Approval Date"), together with all interest thereon accruing
through and including the Confirmation Date, under the
Participation Agreement, the Switchyard Agreement, the Valley
Transmission Agreement and all other ANPP Assumed Agreements;
provided, however, that nothing contained in this Agreement or
pursuant to any discharge or release in or pursuant to the Plan,
the Confirmation Order, any order of the Court requiring the
filing of claims by a deadline (the "Bar Date"), or the Code shall
operate to relieve EPE of any other liability or obligation it may
have that is asserted under any of the ANPP Assumed Agreements for
liabilities and obligations which are assessed or asserted against
EPE in common with one or more of the Other Parties;
(c) that, on the Effective Date, except as to claims that may be
asserted and which are preserved under Section 12 hereof, (i) EPE
shall, by the terms of this Agreement, be released and discharged
from (A) any and all claims, causes of action, rights of
termination, and all other rights and remedies of any other kind
and nature at law or equity held by any of the Other Parties
arising from actions taken or failures to act by EPE in the Lease
Litigation prior to the Court Approval Date and (B) any other
defaults of EPE under the ANPP Assumed Agreements existing and
known by the Other Parties prior to the Court Approval Date, and
(ii) the Other Parties shall, by the terms of this Agreement, be
released and discharged from any and all claims, causes of action,
rights of termination and all other rights and remedies of any
other kind and nature at law or equity held by EPE arising from
any defaults of any of the Other Parties under the ANPP Assumed
Agreements existing and known by EPE prior to the Court Approval
Date; provided, however, that nothing in this Agreement, or
pursuant to the Plan, the Confirmation Order, the Bar Date, or the
Code shall operate to relieve EPE and/or any of the Other Parties
of any liability or obligation it or they may have that may be
assessed or asserted under any of the ANPP Assumed Agreements
against two or more of the participants in common, and further
provided, however, that nothing in this paragraph shall diminish
or impair the Release referred to in Section 5 hereof;
(d) that the release and discharge by EPE pursuant to Section
3(c)(ii) above shall be deemed to apply to claims and causes of
action against the Other Parties solely in their capacities as
participants, but not in their capacities as operating agents;
(e) that, on the Effective Date, except as to claims that may be
asserted and which are preserved under Section 12 hereof, EPE
shall, by the terms of this Agreement, be released by the Other
Parties from any liability for attorneys' fees and administrative
costs or claims incurred in connection with the Case at any time
prior to the Confirmation Date, not to include any such attorneys'
fees and administrative costs or claims (i) that might arise from
any of the Other Parties' transactions with EPE regarding the sale
of power or transmission other than pursuant to the ANPP Assumed
Agreements; or (ii) that may be asserted by any of the Other
Parties which are unrelated to the ANPP Assumed Agreements;
(f) that, notwithstanding any and all other provisions of this
Agreement, including without limitation subparagraphs 3(c), (d),
and (e) above, if EPE shall assert in writing any claims, causes
of action, rights of termination or other rights and remedies of
any kind or nature at law or equity existing and known by EPE
prior to the Court Approval Date and arising from any actual or
alleged act or failure to act prior to the Court Approval Date
("Claims") by APS or SRP, respectively, in their respective
capacities as operating agent under any of the ANPP Assumed
Agreements, any and all releases and discharges granted by APS or
SRP, respectively (whichever is the subject of such Claims), to
EPE pursuant to subparagraph 3(c)(i)(B), (d), or (e) above shall
forthwith become null, void and of no further force or effect; and
APS or SRP, respectively (whichever is the subject of such
Claims), shall be entitled to assert any and all claims, causes of
actions, rights of termination and other rights and remedies free
of the provisions of subparagraphs 3(c)(i)(B), (d), and (e) above
and of the releases and discharges to which reference is made
therein;
(g) that, immediately upon its receipt of the payments specified
in Section 2 of this Agreement, APS, as Operating Agent, shall pay
to EPE the amount of $3,818,409.62 representing amounts withheld
by APS, as of the date hereof, and not distributed to EPE under
the Participation Agreement;
(h) that, immediately upon its receipt of the payments specified
in Section 2 of this Agreement, SRP, as operating agent under the
Switchyard Agreement and the Valley Transmission Agreement, shall
pay to EPE the respective amounts of $8,047.92 and $12,708.88,
representing amounts withheld by SRP, as operating agent under
such agreements, as of the date hereof, and not distributed to EPE
under the Switchyard Agreement and the Valley Transmission
Agreement, respectively;
(i) that if this Agreement is terminated pursuant to Sections
8(c) or 11 hereof, the amounts specified in subparagraphs (g) and
(h) of this Section 3 shall be returned and repaid without
interest to the respective operating agents by EPE promptly and in
any event within five (5) business days of such termination; and
(j) that, on the Effective Date, solely for purposes of the Plan,
the Other Parties shall be deemed to have withdrawn any and all
proofs of claims filed in the Case by APS, as Operating Agent,
SRP, as operating agent under the Switchyard Agreement and the
Valley Transmission Agreement, and the Other Parties solely in
their capacities as parties to and/or participants under the ANPP
Assumed Agreements; provided, however, that such action by the
Other Parties shall have no effect on any liability or obligation
of EPE hereunder or under the ANPP Assumed Agreements.
The intent of this Agreement (including but not limited to this Section
3) is that if, for example and not by way of limitation, a claim such
as an environmental claim is made against any of the parties hereto for
damages commencing on the date of an act, event, or occurrence whether
before or after the Petition Date, then EPE, as a participant under the
Participation Agreement, the Switchyard Agreement, and/or the Valley
Transmission Agreement, as the case may be, shall be and remain liable
for its pro rata share, based upon its full participant interest
pursuant to such agreements, of any damages awarded on account of such
claim, notwithstanding any and all provisions or effect of this
Agreement, the Plan, the Confirmation Order, the Bar Date, or the Code.
To the extent this Agreement releases, waives, or limits claims of the
Other Parties against EPE or of EPE against the Other Parties, as the
case may be, such claims are limited to those which result solely from
breaches of EPE or the Other Parties but not to liabilities or
obligations which are assessed or asserted against EPE in common with
one or more of the Other Parties or which result, directly or
indirectly, from claims by entities other than the Other Parties
against EPE in common with one or more of the Other Parties.
4. Interim Agreements. Subject to all of the terms and conditions
set forth in this Agreement, during the period after the Confirmation
Date and until and including the earlier to occur of the Effective Date
and the date upon which this Agreement shall have been terminated in
accordance with Section 8(c) or 11 hereof:
(a) EPE and the Other Parties agree that, with respect to all
matters relating to the ANPP Assumed Agreements, EPE and the Other
Parties shall be governed by the provisions of such ANPP Assumed
Agreements and this Agreement; provided, however, that this
section (i) shall not impair EPE's right to assert, or prohibit
EPE from asserting, any argument or defense that the Court should
assume or exercise jurisdiction, and (ii) shall not impair the
Other Parties' right to assert, or prohibit the Other Parties from
asserting, any argument or defense that the Court should not
assume or exercise jurisdiction. Notwithstanding the preceding
sentence, none of the automatic stay of Section 362 of the Code,
the post-confirmation injunction of Sections 524 and 1141 under
the Code, or any stay or injunction under the Plan or the
Confirmation Order shall be applicable to any actions or remedies
taken by the Other Parties under the ANPP Assumed Agreements
(including the giving of notice of default and implementation of
appropriate remedies and enforcement procedures) to address any
action or inaction of EPE subsequent to the Confirmation Date.
(b) Except as expressly provided in Section 3 hereof, nothing
contained in this Agreement or pursuant to the Plan, the
Confirmation Order, the Bar Date, or including without limitation
any discharge, injunction, or release pursuant to the Plan or the
Confirmation Order shall operate to waive, affect, or restrict in
any manner whatsoever the rights of the Other Parties or of EPE
under any of the ANPP Assumed Agreements to enforce in accordance
therewith any and all rights thereunder with respect to any
default or breach of EPE or the Other Parties under such
agreements. No waiver or release contained herein with respect to
any default or breach of EPE or the Other Parties under any of the
ANPP Assumed Agreements will be deemed to have waived any
subsequent default or breach of EPE or the Other Parties under any
of the ANPP Assumed Agreements notwithstanding the similarity of
said subsequent default or breach to similar defaults or breaches
of EPE or the Other Parties waived or released herein; provided,
however, that the Other Parties agree that, except as provided in
Section 3(a) hereof, they will not assert any defaults or breaches
under the ANPP Assumed Agreements as a bar to EPE's assumption of
the ANPP Assumed Agreements.
(c) Nothing contained in this Agreement, the Case, the Plan, or
the Confirmation Order shall entitle EPE to interfere with,
oppose, or deny prior operating procedures and actions taken,
conducted, and approved by the ANPP Participants pursuant to the
ANPP Assumed Agreements, except in accordance with procedures
provided under the ANPP Assumed Agreements.
5. Limited Waiver and Release. Concurrently with the execution of
this Agreement, EPE and APS will execute the limited waiver of statute
of limitations attached hereto as Appendix A and made a part hereof by
reference (the "Limited Waiver"). On the Effective Date, EPE and each
of the Other Parties will execute and deliver the release attached
hereto as Appendix B and made a part hereof by reference (the
"Release").
6. Form of Payments. All payments required pursuant to Sections 2
and 3 of this Agreement shall be made by wire transfer of cash or
immediately available funds pursuant to written instructions from the
party to whom payment is to be made.
7. No Amendment or Change. Nothing in this Agreement shall
constitute or be deemed to constitute any amendment, change, or
modification of any type or nature of any of the ANPP Assumed
Agreements.
8. The Plan.
(a) It is the intent of the Parties to this Agreement that (i)
this Agreement be approved by the Court, become effective, and
continue to be effective and binding on EPE as a party hereto,
(ii) EPE's Assumption of the ANPP Assumed Agreements in accordance
with this Agreement is a condition precedent to the effectiveness
of the Plan, (iii) subject to the provisions of Section 11(d)
hereof, this Agreement will be the exclusive procedure by which
EPE can Assume the ANPP Assumed Agreements, and (iv)
notwithstanding anything to the contrary in the Plan, including
but not limited to Section 7.7 thereof, or in the Merger Agreement
(as such term is defined in the Plan), in the event of any
inconsistency between the Plan or the Merger Agreement and this
Agreement, this Agreement will control.
(b) EPE shall use all reasonable efforts, in good faith, to
obtain a Confirmation Order which provides that (i) EPE's
Assumption of the ANPP Assumed Agreements in accordance with this
Agreement is a condition precedent to the effectiveness of the
Plan, (ii) subject to the provisions of Section 11 hereof, this
Agreement will be the exclusive procedure by which EPE can Assume
the ANPP Assumed Agreements, and (iii) notwithstanding anything to
the contrary in the Plan, including but not limited to Section 7.7
thereof, or in the Merger Agreement (as such term is defined in
the Plan), in the event of any inconsistency between the Plan or
the Merger Agreement and this Agreement, this Agreement will
control.
(c) In the event that the Confirmation Order does not contain all
of the provisions of Section 8(b)(i), (ii) and (iii) set forth
above, then any of the Other Parties may terminate this Agreement,
in which case this Agreement shall be void and of no further
effect. Upon such a termination, any extensions provided under
Section 9 or provided under any separate stipulations of the
parties shall survive and control. If the Agreement is not
terminated by the Other Parties on or prior to the Confirmation
Date, then EPE shall be deemed to be in full compliance with this
Agreement on the Confirmation Date, and unless terminated in
accordance with Section 11 herein, this Agreement shall be the
exclusive procedure through which EPE may assume the ANPP Assumed
Agreements.
(d) The Other Parties, solely in their capacities as parties to,
and/or participants under, the ANPP Assumed Agreements,
acknowledge and agree that so long as this Agreement has been
approved by an Approval Order (as defined in Section 9(a) hereof)
in accordance with Section 9(a) hereof and has not been terminated
under Sections 8(c) or 11 hereof, the Other Parties, solely in
their capacities as parties to and/or participants under the ANPP
Assumed Agreements, will not object to or vote for or against the
Plan;
(e) APS, as Operating Agent, will reasonably cooperate in
required Nuclear Regulatory Commission proceedings and will assist
in providing information for other regulatory proceedings (if any)
required for the Assumption of the ANPP Assumed Agreements
pursuant to this Agreement; and
(f) If the Plan is amended, EPE will make all best efforts to
ensure that the Plan will be consistent with the terms of this
Agreement.
9. Procedures and Timing.
(a) Promptly following the execution of this Agreement by all of
the parties hereto, the parties hereto (and the Mediator, if he is
agreeable) shall jointly file motions for approval of this
Agreement. EPE shall use its best efforts to obtain an order of
the Court approving its entry into this Agreement as provided in
Section 10(b) hereof (the "Approval Order"). EPE agrees to the
extension, as to the Other Parties, of any deadline that may
otherwise be applicable to the Other Parties, to dates determined
by the Court, for (i) filing objections or casting ballots on the
Plan (which deadline as so extended shall not be prior to six (6)
days after the entry of any order denying the joint motion
referred to above); (ii) filing or completion of any pretrial
stipulation, order, or schedule regarding confirmation of the
Plan; (iii) completion of any discovery regarding confirmation of
the Plan; or (iv) presentation of any evidence or examination of
any witness in any hearing on confirmation of the Plan; and in the
event of any termination of this Agreement (x) EPE and the Other
Parties shall cooperate with each other in good faith to enable
the Other Parties and EPE to make a full presentation of their
positions during the confirmation proceedings, and (y) each of the
Other Parties shall have the right to object to the Plan and to
vote for or against confirmation of the Plan;
(b) if, prior to the entry of the Approval Order, any change of
circumstance occurs in the Case or under the Plan that is
materially adverse to the Other Parties under the terms of this
Agreement or under the ANPP Assumed Agreements, then, upon written
notice by any of the Other Parties, this Agreement shall be void
and without effect unless such change of circumstances is
expressly waived by all of the Other Parties; provided, however,
that the extensions granted or for which provision is made in
subparagraph (a) above shall remain applicable for at least seven
(7) days after the declaration by a Participant of a material
adverse change; and
(c) Subject to consent of the Mediator, EPE shall provide the
Other Parties access, on a confidential basis, to a draft of the
proposed settlement of issues relating to the Lease Litigation,
including any proposed revision of any agreements related to the
Palo Verde Leases (as such term is defined in the Plan). To the
extent that any settlement among EPE and the parties to the Lease
Litigation requires the consent of the Other Participants, the
Other Participants will review the settlement in good faith,
consistent with Section 15 of the Participation Agreement, and the
required consent, if any, will not be unreasonably withheld.
After the Court Approval Date, any agreement relating to the Lease
Litigation or modification of such agreement, either in the Case
or pursuant to the Plan, that violates any of the ANPP Assumed
Agreements shall be addressed pursuant to the procedures under the
ANPP Assumed Agreements. The Other Participants agree that, based
solely on the description of the consensual treatment of Class 6,
Class 12(a), and Class 12(b) (as such terms are defined in the
Modified Third Amended Plan of Reorganization, as corrected
September 15, 1993 (the "Current Plan")), as set forth in Section
3.8(A) and (C) and Section 3.14(A) and (B) of the Current Plan,
and on the representations and warranties of EPE set forth below
in this Section 9(c)(i) and (ii), the Other Participants agree to
waive the requirement under the Participation Agreement, if any,
for their consent to such consensual treatment. Assuming that
Classes 6, 12(a), and 12(b) accept the consensual treatment set
forth in Section 3.8(A) and (C) and Section 3.14(A) and (B) of the
Current Plan, EPE hereby represents and warrants as of the
Effective Date to the Other Participants that:
(i) Reorganized EPE will not seek to be treated or
classified as, and will not be deemed, a Transferee, as such
term is defined in Section 15.10 of the Participation
Agreement, and for all purposes of the Participation
Agreement, Reorganized EPE will be deemed to have succeeded
by operation of law to all of the rights and obligations of
Reorganized EPE under the Participation Agreement and to have
been previously a Participant thereunder; and
(ii) the liabilities or obligations of Reorganized EPE with
respect to its full 15.8 percent participant interest in the
ANPP shall not be affected, released, or waived as a result
of any release of Class 6 Claims, Class 12(a) Claims, and
Class 12(b) Claims, and to the extent not covered by such
Classes, any of the Lease Obligation Bondholders, Secured
Lease Obligation Bondholders, Palo Verde Indenture Trustees,
Funding Corporations, Owner Trustees, Owner Trusts, and Owner
Participants (as such terms are defined in the Plan) under
any provision of the Plan, the OP Settlement, or the
Settlement Agreements (as such terms are defined in the Plan)
or otherwise in the Case from any liability or obligation
with respect to ANPP or the Palo Verde Leases; and
Reorganized EPE agrees to indemnify the Other Participants
and hold them harmless to the extent that any of said
releases results in any of the Other Participants becoming
obligated for more than their respective participant
interests; provided, however, that Reorganized EPE's
obligation to indemnify the Other Participants hereunder
shall in no event result in payments by Reorganized EPE in
respect of any such liability or obligation which, in the
aggregate, per occurrence, exceed an amount equal to EPE's
proportionate Participant - share in ANPP.
A further condition to the Other Parties' waiver of consent
pursuant to this Section 9(c) is that, as of the Effective Date,
neither the "OP Settlement" (as defined in the Plan) or amendments
to the Plan shall materially and adversely affect the Other
Participants.
10. Conditions to Binding Effect; Persons Bound; Assignments. If,
between the date this Agreement is executed and the Court Approval
Date, the Other Parties have not terminated this Agreement in
accordance with Section 9(b) hereof, this Agreement will become binding
upon EPE and the Other Parties on the earliest date upon which all of
the following have occurred: (a) this Agreement has been executed and
delivered by EPE and each of the Other Parties; (b) an order of the
Court approving this Agreement has been entered; (c) at least ten (10)
days have elapsed since the date such order was entered by the Court,
and no stay of the order approving this Agreement is in effect; and (d)
EPE and APS have executed and delivered the Limited Waiver. This
Agreement shall be binding upon and inure to the benefit of EPE and
each of the Other Parties and their respective successors and assigns,
including Reorganized EPE; provided, however, that (i) the requirement
in subpart (c) of the preceding sentence can be waived by EPE and Other
Parties. None of the parties hereto may assign any of its rights or
obligations hereunder except to a party who, concurrently with such
assignment, becomes a Participant pursuant to and in accordance with
the Participation Agreement with respect to the assigning person's
interest in ANPP. Any person who becomes a Participant shall be bound
by this Agreement.
11. Termination. (a) During the period after the Court Approval Date
and on or prior to the Confirmation Date, this Agreement will terminate
and be of no further force or effect in the event that: (i)
confirmation of the Plan is denied by the Court; (ii) the Plan is
withdrawn by EPE; or (iii) there is any change in the Plan as on file
on the Court Approval Date or in the Case which materially and
adversely affects any of the Other Parties, in their reasonable
discretion, and any of the Other Parties so affected promptly shall
have notified EPE and each of the Other Parties of the same.
(b) In the event that, on or prior to the Confirmation Date, any of
the Other Parties notifies EPE that it is not in compliance with this
Agreement, EPE or any of the Other Parties shall have the right, on the
earlier to occur of (i) five business days after the date that such
notice was sent by facsimile transmission with receipt confirmed or
(ii) the Confirmation Date, to declare this Agreement to be terminated
and of no further force and effect. Upon such a termination, any
extensions provided under Section 9 or provided under any separate
stipulations of the parties shall survive and control.
(c) Notwithstanding that this Agreement shall have become binding and
shall not have been terminated prior to the Confirmation Date, EPE and
the Other Parties shall have the right to declare this Agreement to be
terminated and of no further force and effect subject to the provisions
of Section 11(d) hereof in the event that (i) the Plan is revoked in
accordance with its terms or (ii) the Confirmation Order is vacated.
(d) In the event that one or more of the conditions to binding effect
contained in Section 10 hereof are not satisfied or are not waived or
this Agreement shall have been terminated in accordance with its terms:
(i) the parties agree that the Stipulation shall continue to control
issues between EPE and the Other Parties pending any further order of
the Court; and (ii) this Agreement and the agreements and recitals set
forth herein will have no further force and effect and may not be
utilized in any subsequent proceeding or court; provided, however, in
the event of any termination of this Agreement, any extensions provided
under Section 9 or provided under any separate stipulations of the
parties shall survive and remain as a binding requirement and agreement
of EPE and the Other Parties.
12. Preservation of Certain EPE or PNM Rights, Claims and Remedies.
Nothing in this Agreement shall impair or modify any right, claim, or
remedy of EPE or PNM in connection with the issues described in
Appendix A of the Transition Agreement, dated September 2, 1993,
between PNM and EPE (the "Transition Agreement") or waive any default
of EPE or PNM that may exist pursuant to any agreement (collectively,
the "Preserved Claims"); provided, however:
(a) PNM and EPE agree that (i) PNM will not assert a non-monetary
default by EPE under the ANPP Assumed Agreements as a bar to
Assumption of the ANPP Assumed Agreements by EPE pursuant to this
Agreement, and (ii) PNM or EPE will not assert a non-monetary
default by either PNM or EPE under the ANPP Assumed Agreements at
any time prior to or on the Confirmation Date;
(b) If (i) the Transition Agreement terminates and EPE and PNM
are unable to reach the Amended Interim Agreement contemplated by
the Transition Agreement, and (ii) PNM or EPE determines that the
party contemplating the claim is itself materially and adversely
affected in its ability to import remote generation as a result of
EPE or PNM import of generation entitlement from PVNGS, then PNM
or EPE may pursue any and all Preserved Claims after the
Confirmation Date; and
(c) In no event shall PNM or EPE assert prior to the Confirmation
Date that a default under the Transition Agreement, the Interim
Transmission Agreement and Agreement to Arbitrate Between EPE and
PNM, or any other agreement may or shall constitute a default
under any of the ANPP Assumed Agreements.
Except as provided in this Section 12, PNM and EPE will be governed by
the terms of this Agreement, including the waivers and releases in
Section 3 and in the Release.
13. Governing Law. This Agreement will be governed by, and construed
in accordance with, the laws of the State of Arizona.
14. Execution in Counterparts. This Agreement may be executed in any
number of counterparts.
15. Headings. Section headings in this Agreement are included herein
for convenience of reference only and shall not constitute a part of
this Agreement for any other purpose.
16. Modification, Waiver, Etc. No amendment, modification,
supplement, waiver, or consent made hereunder shall be effective unless
in writing and signed, in the case of an amendment, modification, or
supplement, by all of the parties hereto, and, in the case of a waiver
or consent, by the party or parties making such waiver or consent.
17. Notices. Any and all notices with respect to this Agreement shall
be in writing, both by facsimile transmission and by first class mail,
directed as follows:
To EPE and Palo Verde Owners
Corporate Secretaries:
To EPE
Eduardo Rodriguez
303 Oregon Street
El Paso, Texas 79901
To APS
Nancy C. Loftin
400 N. 5th Street
Sta. 9068
Phoenix, Arizona 85004
To PNM
Patrick T. Ortiz
Alvarado Square
MS 0804
Albuquerque, New Mexico 87158
To SRP
William K. O'Neal
P.O. Box 52025
PAB 215
Phoenix, Arizona 85072
To SCE
Kenneth S. Stewart
2244 Walnut Grove Avenue
Room 330
Rosemead, California 91770
To LADWP
Judith K. Kasner
111 N. Hope Street
Room 1555
Los Angeles, California 90051
To SCPPA
Eldon A. Cotton
111 N. Hope Street
Room 1155
Los Angeles, California 90051
To Counsel:
To EPE
Bryan Krakauer
SIDLEY & AUSTIN
One First National Plaza
Chicago, IL 60603
To APS
Donald L. Gaffney
SNELL & WILMER
One Arizona Center
400 E. Van Buren
Phoenix, AZ 85004-0001
To SRP
Gary Keltner
JENNINGS, STROUSS & SALMON
2 North Central, Suite 1600
Phoenix, AZ 85004-2393
To CSW
Joris M. Hogan
MILBANK, TWEED, HADLEY & McCLOY
One Chase Manhattan Plaza
New York, NY 10005
Except as otherwise provided in this Agreement, Notices shall be deemed to
be received upon the earlier to occur of, (i) in the case of facsimile
transmission, receipt by the party to whom such notice is addressed, and
(ii) in the case of delivery by first class mail, on the third business day
following the date upon which the notice is mailed. During the confirmation
hearing, all notices hereunder to counsel attending the hearing shall also
be made by hand delivery.
EPE agrees that a representative of management from APS (the "APS
Representative") will receive all notices and/or documents that are provided
to the Oversight Committee, as that term is defined in the Plan.
EL PASO ELECTRIC COMPANY
By: David H. Wiggs
__________________________________
Its: Chairman and Chief Operating
Officer
_________________________________
ARIZONA PUBLIC SERVICE COMPANY
By: William F. Conway
__________________________________
Its: Executive Vice President -
Nucleur
_________________________________
SALT RIVER PROJECT AGRICULTURAL
Attest: IMPROVEMENT AND POWER DISTRICT
By: By: David G. Areghini
_______________________________ __________________________________
Its: Its: Associate General Manager,
Power, Construction &
Engineering Svcs
______________________________ _________________________________
SOUTHERN CALIFORNIA EDISON COMPANY
By: Harold B. Ray
__________________________________
Its: Sr. Vice President
_________________________________
PUBLIC SERVICE COMPANY OF
NEW MEXICO
By: M. Phyllis Bourque
__________________________________
Its: Sr. Vice President
_________________________________
SOUTHERN CALIFORNIA PUBLIC
Attest: POWER AUTHORITY
By: Glenda L. Robinson By: Eldon A. Cotton
______________________________ __________________________________
Its: Administrative Secretary Its: Agent
_____________________________ _________________________________
DEPARTMENT OF WATER AND POWER OF
Attest: THE CITY OF LOS ANGELES
By: Glenda L. Robinson By: Eldon A. Cotton
______________________________ __________________________________
Its: Administrative Secretary Its: Assistant General Manager- Power
_____________________________ _________________________________
Schedule 1
TAX AGREEMENTS
1. That certain letter agreement, dated August 14, 1986, from
Arizona Public Service Company ("APS"), El Paso Electric Company ("EPE") and
Public Service Company of New Mexico ("PNM"), addressed to Southern
California Edison Company ("SCE"), Re: "Arizona Public Service Company, El
Paso Electric Company and Public Service Company of New Mexico: Refinancing
of Interests in Palo Verde Nuclear Generating Station" (the "Indemnity
Letter").
2. That certain Contribution Agreement, dated as of August 14,
1986, by and between APS, EPE and PNM, relating to the Indemnity Letter.
3. That certain letter agreement, dated August 21, 1986, from
APS, EPE and PNM, addressed to SCE, amending the Indemnity Letter.
4. That certain letter agreement, dated December 2, 1986, from
APS, EPE and PNM, addressed to SCE, further amending the Indemnity Letter.
5. Any similar agreement(s) entered into by EPE in connection
with EPE's 1987 sale/leaseback transactions.
6. Any indemnity agreements entered into between APS and EPE
whereby EPE indemnified APS for any liabilities arising out of APS
delivering Annual Reports of Operating Agent (relating to PVNGS insurance)
under EPE's sale/leaseback transactions.
7. Indemnity Agreement, effective as of December 29, 1983,
between APS and EPE relating to the issuance of $63,500,000 principal amount
of Annual Tender Pollution Control Revenue Bonds, 1983 Series A (El Paso
Electric Company Palo Verde Project), and other indemnity agreements, if
any, relating to other pollution control bond issuances on behalf of EPE.
Schedule 2
SWITCHYARD AND TRANSMISSION AGREEMENTS*
Those agreements, contracts, leases, purchase orders and other
documents shown on the attached Annex A.
_______________
* "Agreements, contracts, leases, purchase orders and other similar
documents" are referred to collectively herein as "Agreements." By
generating the attached Annex A, the Switchyard Participants and the
Valley Transmission Participants have made a good faith effort to list
all ongoing active Agreements currently in effect at or with respect to
the ANPP High Voltage Switchyard and the Valley Transmission System.
This list is subject to change at any time as old Agreements expire,
existing Agreements are amended or are extended, and new Agreements are
entered into. The parties to the Cure and Assumption Agreement to
which this Schedule 2 is attached agree that the listing of these
Agreements is not intended to, and will not, limit the liabilities and
obligations of EPE as a Switchyard Participant or as a Valley
Transmission Participant in common with the other such participants
with respect to any and all Agreements in effect or to be in effect at
or with respect to the ANPP High Voltage Switchyard and the Valley
Transmission System, whether or not listed hereon.
ANNEX A
The following agreements as the same shall have been amended to
date:
1. ANPP Kyrene 500/230 KV Switchyard Interconnection Agreement,
effective on or about July 24, 1980.
2. Palo Verde-North Gila Line ANPP High Voltage Switchyard
Interconnection Agreement, effective on or about June 7, 1984.
3. ANPP Transmission Project-Westwing Switchyard Amended
Interconnection Agreement, effective on or about August 14, 1986.
4. All other agreements of any type or nature entered into by
SRP as operating agent relating to the ANPP High Voltage Switchyard and/or
the Valley Transmission System.
Schedule 3
ANPP AGREEMENTS*
Those agreements, contracts, leases, purchase orders and other
documents shown on the attached computer-generated Annex A and the attached
Annex B.
_______________
* "Agreements, contracts, leases, purchase orders and other similar
documents" are referred to collectively herein as "Agreements." By
generating the attached Annex A and Annex B, the Participants have made
a good faith effort to list all ongoing active Agreements currently in
effect at or with respect to ANPP. This list is subject to change at
any time as old Agreements expire, existing Agreements are amended or
are extended, and new Agreements are entered into. The parties to the
Cure and Assumption Agreement to which this Schedule 3 is attached
agree that the listing of these Agreements is not intended to, and will
not, limit the liabilities and obligations of EPE as a Participant in
ANPP in common with the Other Participants with respect to any and all
Agreements in effect or to be in effect at or with respect to ANPP,
whether or not listed hereon.
ANNEX A
[Omitted]
ANNEX B
The following agreements as the same shall have been amended to
date:
1. Agreement for Construction of Arizona Nuclear Power Project,
dated as of January 15, 1973, between APS, as Agent for all Participants in
Arizona Nuclear Power Project, and Bechtel Power Corporation.
2. Agreement for Engineering and Procurement Services, dated as
of January 15, 1973, between APS, as Project Manager of Arizona Nuclear
Power Project, and Bechtel Power Corporation.
3. Agreement No. 13904 - Option and Purchase of Effluent, dated
as of April 23, 1973, among APS and the Cities of Phoenix, Glendale, Mesa,
Scottsdale, and Tempe, the Town of Youngtown, and Salt River Project
Agricultural Improvement and Power District.
4. Nuclear Steam Supply System Contract, dated as of August 20,
1973, between APS as Project Manager of Arizona Nuclear Power Project and
Combustion Engineering, Inc.
5. Turbine Generator Contract, dated as of March 21, 1974,
between APS, as Project Manager and Operating Agent for Palo Verde Nuclear
Generating Station, and General Electric Company.
6. Supplemental Agreement of Settlement, dated June 2, 1980,
between APS, Salt River Project Agricultural Improvement and Power District,
Southern California Edison Company, Public Service Company of New Mexico, El
Paso Electric Company, Arizona Electric Power Corporation Inc., and The
Department of Energy, ANPP.
7. Agreement for Delivery of Natural UF6, dated June 2, 1980,
between APS, Salt River Agricultural Improvement and Power District,
Southern California Edison Company, Public Service Company of New Mexico, El
Paso Electric Company, Arizona Electric Power Cooperative, Inc., and the
Department of Energy, ANPP.
8. Agreement for the Sale and Purchase of Wastewater Effluent,
dated as of June 12, 1981, between APS, Salt River Project Agricultural
Improvement and Power District and the City of Tolleson, as amended by
Amendment No. 1 thereto dated as of November 12, 1981, and Amendment No. 2
thereto dated as of June 4, 1986.
9. Master Purchase and Sale Agreement for Renewal Parts and
Factory Repair Work for Palo Verde Nuclear Steam Supply Systems and Related
Equipment, dated as of August 14, 1981, between APS and Combustion
Engineering, Inc.
10. Master Purchase and Sale Agreement for Renewal Parts and
Factory Repair Work for Palo Verde Turbine Generators and Auxiliary Drive
Turbines, dated as of August 6, 1982, between APS as agent for all
Participants in Palo Verde Nuclear Generating Station and General Electric
Company.
11. Master Agreement between APS and Singer Link-Miles Simulation
Corporation - Agreement No. PV 89-20903, dated as of July 27, 1989.
12. Contract, dated July 17, 1991 Under Master Agreement Between
APS and Simulation, Systems & Services Technologies for the Procurement of a
Second Simulator for the Palo Verde Nuclear Generating Station.
13. All purchase orders entered into by the Project Manager or
the Operating Agent relating to ANPP.
14. All software and other licensing agreements relating to ANPP.
15. All agreements for legal services or support entered into by
the Operating Agent relating to ANPP.
16. All settlement agreements entered into by the Project Manager
or the Operating Agent relating to ANPP.
17. All agreements for confidentiality, indemnification or
waivers entered into by the Project Manager or the Operating Agent relating
to ANPP.
18. All other agreements of any type or nature entered into by
the Project Manager or the Operating Agent relating to ANPP.
Appendix A
AGREEMENT REGARDING ASSERTION OF CLAIMS
This AGREEMENT is by and between El Paso Electric Company, a Texas
corporation ("EPE") and Arizona Public Service Company, an Arizona
corporation ("APS"), individually and as Operating Agent (the "Operating
Agent") under the Arizona Nuclear Power Project ("ANPP") Participation
Agreement dated as of August 23, 1973, as amended by Amendment Nos. 1
through 13 thereto (the "Participation Agreement").
WHEREAS, EPE has commenced a voluntary case under Chapter 11 of
the United States Bankruptcy Code (11 U.S.C. Sections 101-1330) which is
currently pending in the United States Bankruptcy Court for the Western
District of Texas (the "Court"), Case No. 92-10148 FM (the "Bankruptcy
Action"); and
WHEREAS, this Agreement is being executed in connection with and
as an integral part of that certain Cure and Assumption Agreement dated as
of November __, 1993 among EPE, APS, and other parties (the "Assumption
Agreement");
WHEREAS, capitalized terms used herein and not otherwise defined
will have the meanings assigned to such terms in the Assumption Agreement;
WHEREAS, Section 5 of the Assumption Agreement contemplates
execution of this Agreement by EPE and APS, and execution of the Release by
EPE, APS and each of the Other Parties on the Effective Date;
WHEREAS, upon the Release becoming effective under Section 2 of
the Release, each Participant will release each other Participant from
certain claims (the "Released Claims"); and
WHEREAS, pursuant to the Plan, EPE and CSW have entered into an
Agreement and Plan of Merger dated as of May 3, 1993, as amended on May 18,
1993, and August 27, 1993, and as may hereafter be amended (the "Merger
Agreement") providing for the acquisition of EPE by CSW by means of a merger
(the "Merger") between EPE and a wholly-owned, special purpose subsidiary of
CSW.
WHEREAS, the Release shall be effective only upon the "Effective
Date" of the Merger (as that term is defined in the Plan of Reorganization
(the "Merger Effective Date"), but shall have absolutely no force and effect
and shall be null and void if the Merger Agreement is terminated, it being
the express intention of EPE and APS that if the Merger is not fully
consummated, the Release Claims can be pursued by EPE and APS in the same
manner and with the same effect as if these Released Claims were to be the
subject of litigation and/or arbitration instituted as of the day of the
signing of this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements of the parties contained herein, the parties hereto agree as
follows:
A. EPE and APS acknowledge and stipulate that: (i) APS and EPE
are parties to the Bankruptcy Action pending before the Court; and (ii) as
of the date of the execution of this Agreement, APS and EPE each could
exercise whatever right that party has, if any, to commence litigation to
adjudicate the Released Claims and assert defenses against the other party.
Nothing herein will impair EPE's right to assert that the Released Claims
could, as of the date of execution of this Agreement, be litigated before
the Court and nothing herein will prohibit APS from asserting any contrary
position relating to the appropriate forum for any such litigation.
B. Consistent with part F below, in the event that the Merger
Agreement is terminated according to its terms and action is taken by filing
a claim or initiating an arbitration proceeding to adjudicate the Released
Claims on or before ninety (90) days from the date upon which the Assumption
Agreement is terminated:
(1) EPE and APS each agrees that the rights and protections
granted to them by the following two sentences of Section 21.5.2 of the
Arizona Nuclear Power Project Participation Agreement are hereby
relinquished and shall not apply to any litigation or dispute between
EPE and APS to adjudicate the Released Claims: "A claim based on
Willful Action must be perfected by filing suit in a court of competent
jurisdiction within three years after the Willful Action occurs. All
claims made thereafter relating to the same Willful Action shall be
barred by this Section 21.5.2."; and
(2) the party against which Released Claims are brought
shall not assert a defense to those claims based upon any period of
limitation, whether prescribed by regulation or applicable law or
contract provision.
C. EPE and APS each consent to the entry of an order by the
Court (the "Approval Order") incorporating the terms of this Agreement and
providing that: (i) the terms of this Agreement are binding upon EPE and
APS; (ii) subject to part F(i) below, any period of limitation that arises
from applicable law, regulation or contract provision that is applicable to
the Released Claims shall be suspended so that the period of limitation will
not expire prior to ninety (90) days after the date upon which the
Assumption Agreement is terminated; and (iii) the Court will retain
jurisdiction over EPE and APS to interpret and enforce the Approval Order
and this Agreement.
D. Upon the execution of this Agreement, EPE and APS shall
cooperate to secure prompt entry of the Approval Order. EPE and APS
stipulate that entry of any order approving and/or enforcing the terms of
this Agreement is necessary and appropriate (within the meaning of 11 U.S.C.
Section 105) to implement the Plan. APS and EPE reserve the right to
contest the content of such an order other than the Approval Order.
E. EPE and APS agree that each party will be deciding whether to
commence or to forgo commencing litigation to adjudicate the Released Claims
in reliance upon the provisions of this Agreement.
F. Except as provided in this Agreement, nothing herein shall be
deemed to: (i) revive or make actionable any claims that, as of the date of
execution of this Agreement and entry by the Court of the Approval Order,
are already time-barred by operation of any applicable limitation period,
including, but not limited to, Section 21.5.2 of the Participation
Agreement; or (ii) cause either APS (individually or as Operating Agent) or
EPE to waive any claim or defense available to either party, including, but
not limited to, those provided under Section 21.5.2 of the Participation
Agreement or other applicable statutes of limitation, other than as provided
in this Agreement, until release occurs pursuant to the terms of the
Assumption Agreement on the Effective Date.
G. If a court of competent jurisdiction determines that any
provision of this Agreement is not enforceable, that provision may be
severed from this Agreement and the remainder of this Agreement shall remain
in full force and effect.
H. This Agreement shall be binding upon the signatories, their
predecessors, successors, assigns, affiliated entities, parents,
subsidiaries and upon Reorganized EPE.
I. This Agreement may be executed in any number of counterparts.
EL PASO ELECTRIC COMPANY
By:___________________________
Its:__________________________
ARIZONA PUBLIC SERVICE COMPANY
By:___________________________
Its:__________________________
Appendix B
RELEASE
This RELEASE is made as of , 199 , by and among the
Participants who are parties to the Arizona Nuclear Power Project
Participation Agreement dated as of August 23, 1973, as amended by Amendment
Nos. 1 through 13 thereto (the "Participation Agreement"). Capitalized
terms used herein and not otherwise defined herein will have the meanings
assigned to such terms in the Cure and Assumption Agreement dated as of
, 199_ among El Paso Electric Company ("EPE") and the Other Parties
(the "Assumption Agreement").
WHEREAS, this Release is being executed in connection with and as an
integral part of the Assumption Agreement; and
WHEREAS, when used hereinafter, the terms "Participants" and "Other
Participants" will include the Project Manager and the Operating Agent.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
of the parties contained herein and in the Assumption Agreement, the parties
hereto agree as follows:
1. Release. Except as otherwise expressly stated herein, each of the
Participants hereby releases each other Participant and each of their
respective past and present subsidiaries, affiliates, agents, officers,
directors, and employees (collectively, the "Released Parties") of and from
all causes of action, suits, claims, and demands whatsoever, in law or in
equity, whether based on contract, tort, or otherwise, and whether or not
based on active or passive negligence or Wilful Action of any person, which
any such Participant or any of their respective subsidiaries or affiliates
ever had or now has on account of or by reason of any breach or default
under the Participation Agreement arising or existing on or prior to the
Petition Date, arising out of or relating to the outages at any Generating
Unit at ANPP commencing in 1989. Notwithstanding anything to the contrary
herein, nothing herein shall be interpreted or deemed to release any
Participant from any obligation to perform all of its duties and fulfill all
of its responsibilities under and in strict compliance with the
Participation Agreement, any of the ANPP Assumed Agreements, or otherwise
with respect to ANPP from and after the date of execution hereof.
2. Effective Date. This Release shall become effective only upon (a)
the execution and delivery hereof by all parties hereto and (b) satisfaction
of all conditions to effectiveness of the Assumption Agreement and the
effectiveness thereof as provided in paragraph 10 thereof, and, except as
provided below, thereafter this Release shall be binding upon and inure to
the benefit of each of the Participants and the other Released Parties and
their respective successors and assigns.
3. Governing Law. This Agreement will be governed by, and construed
in accordance with, the laws of the State of Arizona.
4. Execution in Counterparts. This Agreement may be executed in any
number of counterparts.
EL PASO ELECTRIC COMPANY
By:_________________________________
Its:________________________________
ARIZONA PUBLIC SERVICE COMPANY
By:_________________________________
Its:________________________________
SALT RIVER PROJECT AGRICULTURAL
Attest and Countersign IMPROVEMENT AND POWER DISTRICT
_________________________________ ____________________________________
Its:_____________________________ Its:________________________________
SOUTHERN CALIFORNIA EDISON COMPANY
By:_________________________________
Its:________________________________
PUBLIC SERVICE COMPANY OF
NEW MEXICO
By:_________________________________
Its:________________________________
SOUTHERN CALIFORNIA PUBLIC
Attest: POWER AUTHORITY
_________________________________ By:_________________________________
Its:_____________________________ Its:________________________________
DEPARTMENT OF WATER AND POWER OF
Attest: THE CITY OF LOS ANGELES
_________________________________ By:_________________________________
Its:_____________________________ Its:________________________________
Accepted and Agreed:
CENTRAL AND SOUTH WEST CORPORATION
By:______________________________
Its:_____________________________