Amendment #6, dated February 3, 2000, to Exhibit 10.01



 
EXHIBIT
10.01-01 
 
FOUR CORNERS PROJECT

 
CO-TENANCY AGREEMENT 
 
AMENDMENT NO. 6 
 
AMONG 
 
ARIZONA PUBLIC SERVICE COMPANY 
 
EL PASO ELECTRIC COMPANY 
 
PUBLIC SERVICE COMPANY OF NEW MEXICO 
 
SALT RIVER PROJECT AGRICULTURAL IMPROVEMENT AND POWER
DISTRICT 
 
SOUTHERN CALIFORNIA EDISON
COMPANY 
 
TUCSON ELECTRIC POWER COMPANY

 
Executed Original 
 
February 3, 2000 
 









 
FOUR CORNERS
PROJECT 
 
CO-TENANCY AGREEMENT

 
AMENDMENT NO. 6 
 

	1	 	PARTIES: 

 
The parties to this Amendment No. 6 to the Four Corners Project Co-Tenancy Agreement are: ARIZONA PUBLIC SERVICE COMPANY, an Arizona
corporation (hereinafter referred to as “Arizona”); EL PASO ELECTRIC COMPANY, a Texas corporation (hereinafter referred to as “El Paso”); PUBLIC SERVICE COMPANY OF NEW MEXICO, a New Mexico corporation (hereinafter referred to as
“New Mexico”); SALT RIVER PROJECT AGRICULTURAL IMPROVEMENT AND POWER DISTRICT, an agricultural improvement district, organized and existing under the laws of the State of Arizona (hereinafter referred to as “Salt River Project”);
SOUTHERN CALIFORNIA EDISON COMPANY, a California corporation (hereinafter referred to as “Edison”); and TUCSON ELECTRIC POWER COMPANY, an Arizona corporation, formerly known as Tucson Gas & Electric Company (hereinafter referred to as
“Tucson”), (collectively hereinafter referred to as the “Participants”). 
 

	2	 	RECITALS: 

 
This Amendment No. 6 is made with reference to the following facts, among others: 
 

	 	2.1	 	As of July 19, 1966, the Participants entered into the Four Corners Project Co-Tenancy Agreement, which has since been amended by Amendment Nos. 1 through 5 (as so
amended hereinafter referred to as the “Co-Tenancy Agreement”). 

 









 

	 	2.2	 	The Participants wish to further amend the Co-Tenancy Agreement in order to: 

 

	 	2.2.1	 	Revise Section 6.11 to require a selling Participant to give written notice of any changes in ownership and to require the Operating Agent to prepare for signature
an amendment reflecting such changes in ownership; 

 

	 	2.2.2	 	Revise Sections 5.27 and 9.5 to clarify that Participants may only vote on actions or determinations relating to those portions of the Four Corners Project in which
they have an ownership interest; 

 

	 	2.2.3	 	Permit a Participant to transfer in whole or in part its undivided interests in the Four Corners Project to the parent of such Participant or to a wholly owned
subsidiary of such parent without triggering Section 13; and 

 

	 	2.2.4	 	Shorten the notice periods specified in Section 13 and clarify that a Participant’s right of first refusal extends only to those portions of the Four Corners
Project in which they have an ownership interest. 

 

	3	 	AGREEMENT: 

 
In consideration of the mutual benefits to be derived from this Amendment No. 6, the Participants agree as follows: 
 

	4	 	EFFECTIVE DATE: 

 
This Amendment No. 6 shall be effective upon the date when executed by all of the Participants. 
 

	5	 	DEFINITIONS 

 
Section 5.27 of the Co-Tenancy Agreement is amended to read as follows: 
 
 

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	 	5.27	 	Participant(s) 

 
One or more entities, including Arizona, El Paso, New Mexico, Salt River Project, Edison and Tucson, with an ownership interest in the
Four Corners Project. Except with respect to any rights, benefits, duties or obligations expressly provided for in any Project Agreement, a Participant’s rights, benefits, duties, and obligations under this Agreement are expressly limited to
those rights, benefits, duties, and obligations involving that portion of the Four Corners Project in which the Participant has an ownership interest. 
 

	6	 	OWNERSHIP AND TITLES: 

 
Section 6.11 of the Co-Tenancy Agreement is amended to read as follows: 
 

	 	6.11	 	In the event that any Participant transfers or assigns any of its right, title or interest (collectively, “interest”) in and to the Four Corners Project in
accordance with the terms and conditions of this Co-Tenancy Agreement, the Participant assigning or transferring such interest shall, upon completion of such transfer or assignment, provide written notice to the other Participants and the Operating
Agent, as defined in the Operating Agreement, of any changes in the interests of that Participant in the Four Corners Project. Upon receipt of such notice, the Operating Agent shall prepare for signature by the Participants an amendment to the
Co-Tenancy Agreement reflecting such changes. 

 

	7	 	COORDINATION COMMITTEE: 

 
 
Section 9.5 of the Co-Tenancy Agreement is amended to read as
follows: 
 
 

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	 	9.5	 	Any action or determination of the Coordination Committee shall require the affirmative vote of all Participants, acting through their respective representatives,
that have an ownership interest in that portion of the Four Corners Project that is the subject matter of the action to be taken or the determination to be made. Only those Participants with an ownership interest in the portion of the Four Corners
Project that is the subject matter of an action or determination may participate in discussions relating to such actions or determinations; provided, however, that this restriction shall apply only when required by a regulatory authority with
jurisdiction over the Participant(s), an applicable code of conduct, or a Participant’s reasonable competitive concerns. 

 

	8	 	MORTGAGE AND TRANSFER OF PARTICIPANTS’ INTEREST: 

 

	 	8.1	 	Section 12.3 of the Co-Tenancy Agreement is amended by adding new Sections 12.3.6 and 12.3.7 to read as follows: 

 

	 	12.3	 	Each Participant shall have the right to transfer or assign all or any portion of its respective rights, undivided titles and interests in the Four Corners Project,
in, to and under the Project Agreements and/or in the Granted Lands and Leased Lands, without the need for prior written consent of any other Participant, at any time to any of the following: 

 

	 	12.3.1	 	To any corporation or other entity acquiring all or substantially all of the property of such Participant; or 

 

	 	12.3.2	 	To any corporation or entity into which or with which such Participant may be merged or consolidated; or 

 

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	 	12.3.3	 	To any corporation or entity the stock or ownership of which is wholly owned by a Participant; or 

 

	 	12.3.4	 	To any third party transferee in connection with a financing by such Participant involving or relating to such Participant’s rights, titles and interests in the
Four Corners Project, in, to and under the Project Agreements and/or in the Granted Lands and Leased Lands, without such third party transferee assuming or becoming obligated in any respect to perform any of the obligations of such Participant
pursuant to this Co-Tenancy Agreement, provided that any and all such rights, titles and interests transferred to such third party transferee are immediately re-purchased by such Participant and are thereupon subject to all of the provisions of this
Co-Tenancy Agreement, including, but not limited to, the “right of first refusal” provisions of Section 13 hereof; or 

 

	 	12.3.5	 	To the Salt River Valley Water Users’ Association, an Arizona corporation, in the case of a transfer by Salt River Project; or 

 

	 	12.3.6	 	To any corporation which owns all of the outstanding common stock of a Participant, or in the case of a Participant which has no common stock, to an entity which
owns all of the ownership interest of the Participant (the corporation or entity shall be referred to herein as the “Parent”); or 

 
 

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	 	12.3.7	 	To any corporation or entity the common stock or other ownership interest of which is wholly owned by the Parent of such Participant. 

 

	 	8.2	 	A new Section 12.7 is added to read as follows: 

 

	 	12.7	 	Without implying that any provision other than Article 6 and Article 7 herein allows a Participant to own an undivided ownership interest in any component of the
Four Corners Project which is not the same as the undivided ownership interest such Participant owns in every other component, each Participant shall own the same undivided percentage interest in Unit 4 as in Unit 5. 

 

	9	 	RIGHT OF FIRST REFUSAL: 

 
Sections 13.3, 13.4, 13.6, and 13.8 of the Co-Tenancy Agreement are amended to read as follows: 
 

	 	13.3	 	At least one hundred eighty (180) days prior to its intended date to Assign, and after its receipt of a bona fide written offer of the type described in Section 13.1
above, the Participant desiring to Assign its Transfer Interest shall serve written notice of its intention to do so upon the remaining Participants who have an interest in that portion of the Four Corners Project that is the subject of the Transfer
Interest in accordance with Section 23 of this Co-Tenancy Agreement. Such notice to the remaining Participants shall contain the approximate proposed date to Assign, the terms and conditions of said bona fide written offer received by such
Participant, and the terms and conditions of the proposed assignment. The terms and conditions contained in such notice shall be at least as favorable to the 

 
 

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	 	    	 	remaining Participants as the terms and conditions of said bona fide written offer, or may be the same terms and conditions as set forth in said offer.


 

	 	13.4	 	Each remaining Participant having an ownership interest in the portion of Four Corners Project that is the subject of the Transfer Interest, including the Outside
Party if such Outside Party is a Participant, shall signify its desire to purchase the entire Transfer Interest, or any percentage interest therein, or not to purchase all or any percentage interest therein, by serving written notice of its
intention upon the Participant desiring to Assign and upon the remaining Participants pursuant to Section 23 hereof within one hundred twenty (120) days after such service pursuant to Section13.3 of the written notice of intention to Assign. Failure
by a Participant to serve notice as provided hereunder within the time period specified shall be conclusively deemed to be notice of its intention not to purchase any portion of the Transfer Interest. 

 

	 	13.6	 	If the remaining Participants or any one or more of them, should signify its or their intention under Section 13.4 to purchase less than the entire Transfer
Interest, the Participant desiring to Assign shall serve written notice of this fact upon the remaining Participants in accordance with Section 23 hereof within ten (10) days after its receipt of the last of the written notices given pursuant to
Section 13.4 hereof, or after the expiration of the one hundred twenty (120) day period referred to in Section 13.4 hereof, whichever is earlier. 

 
 

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	 	13.8	 	When intention to purchase the entire Transfer Interest has been indicated by notices duly given hereunder by the applicable Participant(s) desiring to purchase the
Transfer Interest, the Participants shall thereby incur the following obligations: 

 

	 	13.8.1	 	The Participant desiring to Assign and the Participant(s) desiring to purchase the Transfer Interest shall be obligated to proceed in good faith and with diligence
to obtain all required authorizations and approvals to Assign; 

 

	 	13.8.2	 	The Participant desiring to Assign shall be obligated to obtain the release of any liens imposed by or through it upon any part of the Transfer Interest, and to
Assign the Transfer Interest at the earliest practicable date thereafter; and 

 

	 	13.8.3	 	The Participant(s) desiring to purchase the Transfer Interest shall be obligated to perform all terms and conditions required of it or them to complete the purchase
of the Transfer Interest. 

 
The
purchase of the Transfer Interest shall be fully consummated within eighteen (18) months following the date upon which all notices required to be given under this Section 13 have been duly served, unless the Participant(s) are then diligently
pursuing applications to appropriate regulatory bodies (if any) for required authorizations to effect such assignment or are then diligently prosecuting or defending appeals from orders entered or authorizations issued in connection with such
application, in which case the purchase of the Transfer Interest shall be fully 
 
 
 

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consummated
at the earliest possible date following issuance of the requested authorization(s) or the resolution of any appeal. 
 

	10	 	EXECUTION BY COUNTERPARTS: 

 
This Amendment No. 6 may be executed in any number of counterparts, and upon execution by all participants, the counterparts shall have
the same force and effect as an original instrument and as if all Participants had signed the same instrument. Any signature page of this Amendment No. 6 may be detached from any counterpart of this Amendment No. 6 without impairing the legal effect
of any signature thereon, and may be attached to another counterpart of this Amendment No.6 identical in form hereto but having attached to it one or more signature pages. 
 

	11	 	EFFECT OF AMENDMENTS: 

 
Except as specifically amended herein, this Co-Tenancy Agreement, as previously amended, shall remain in full force and effect.

 
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	12	 	SIGNATURE CLAUSE: 

 
The signatories hereto represent that they have been appropriately authorized to enter into this Amendment No. 6 on behalf of the
Participant for whom they sign. This Amendment No. 6 is hereby executed as of this 3rd day February, 2000. 
 

	 ARIZONA PUBLIC SERVICE COMPANY 

	
	 By
	 	 /s/    John Denman      


	 Its
	 	 Vice President, Fossil


	
	 EL PASO ELECTRIC COMPANY 

	
	 By
	 	 /s/    John C. Horne    


	 Its
	 	 Vice President – Generation


	
	 PUBLIC SERVICE COMPANY OF NEW MEXICO

	
	 By
	 	 /s/    Patrick Goodman    


	 Its
	 	 Vice President – Power Production




 

	 	 	 SALT RIVER PROJECT AGRICULTURAL
 IMPROVEMENT AND POWER DISTRICT

	
	 ATTEST AND COUNTERSIGN  
	 	 By
	 	 /s/    William P.
Schroder        


	 /s/    Terrill A.
Lonon        

	 	 Its
	 	 President



 
 

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	 SOUTHERN CALIFORNIA EDISON COMPANY

	
	 By
	 	 /s/    Harold Ray      


	 Its
	 	 Executive Vice-President


	
	 TUCSON ELECTRIC POWER COMPANY

	
	 By
	 	 /s/    Thomas A.
Delawder      


	 Its
	 	 Vice – President, Energy Resources




 

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	 STATE OF ARIZONA
	  	 )

	 	  	 ) ss

	 County of Maricopa
	  	 )


 
The
foregoing instrument was acknowledged before me this 21st day of April, 2000, by John R. Denman, Vice President,
Fossil, Arizona Public Service Company, on behalf of the corporation. 
 

	
	 /s/    Christine A.
LaBrash        


	 Notary Public



 
 
My Commission Expires: 
 
August 29, 2003 
 
[SEAL] 
 

	 STATE OF TEXAS
	  	 )

	 	  	 ) ss

	 County of El Paso
	  	 )


 
The
foregoing instrument was acknowledged before me this 9th day of February, 2000, by John C. Horne, Vice
President-Generation of El Paso Electric Company, on behalf of the corporation. 
 

	
	 /s/    Hilda Vargas
      


	 Notary Public



 
My Commission
Expires: 
 

	
	 June 26, 2001        


 
 

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	 STATE OF NEW MEXICO
	  	 )

	 	  	 ) ss

	 County of San Juan
	  	 )


 
The
foregoing instrument was acknowledged before me this 4th day of February, 2000, by Patrick Goodman,
             of Public Service Company of New Mexico, on behalf of the corporation. 
 

	
	 /s/  Beverly A. Jolim


	 Notary Public



 
My Commission
Expires: 
 
        1-16-2001     
 
 

	 STATE OF ARIZONA
	  	 )

	 	  	 ) ss

	 County of Maricopa
	  	 )


 
The
foregoing instrument was acknowledged before me this 6th day of March, 2000, by William P. Schroder, President of
Salt River Project Agricultural Improvement and Power District, on behalf of the corporation. 
 

	
	 /s/  Margaret A. Sullivan


	 Notary Public



 
My Commission
Expires: 
 
September 16,
2001         
 
 

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	 STATE OF CALIFORNIA
	  	 )

	 	  	 ) ss

	 County of Los Angeles
	  	 )


 
The
foregoing instrument was acknowledged before me this 9th day of February, 2000, by Harold Ray, Executive Vice
President of Southern California Edison Company, on behalf of the corporation. 
 

	
	 /s/  Sarah C. Perez


	 Notary Public



 
My Commission
Expires: 
 
August 6, 2001 
 

	 STATE OF ARIZONA
	  	 )

	 	  	 ) ss

	 County of Pima
	  	 )


 
The
foregoing instrument was acknowledged before me this 7th day of February, 2000, by Thomas A. Delawder, Vice
President Energy Resources of Tucson Electric Power Company, on behalf of the corporation. 
 

	
	 /s/  Bertha A. Kissinger


	 Notary Public



 
My Commission Expires: 
 
January 21, 2003

 

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