EXHIBIT B-3
PP FOSSIL PURCHASE AND SALE AGREEMENT
by and between
PENNSYLVANIA POWER COMPANY
(SELLER)
and
FIRSTENERGY GENERATION CORP.
(PURCHASER)
TABLE OF CONTENTS
PAGE
ARTICLE 1 DEFINITIONS ....................................................... 1
SECTION 1.1 DEFINED TERMS................................................ 1
SECTION 1.2 OTHER DEFINITIONAL AND INTERPRETIVE MATTERS.................. 3
ARTICLE 2 PURCHASE AND SALE................................................... 3
SECTION 2.1 PURCHASE AND SALE............................................ 3
SECTION 2.2 PURCHASE PRICE............................................... 3
SECTION 2.3 ASSUMED LIABILITIES.......................................... 4
SECTION 2.4 SELLER'S POLLUTION CONTROL REVENUE BONDS..................... 4
SECTION 2.5 FURTHER ASSURANCES; FURTHER CONVEYANCES AND ASSUMPTIONS...... 4
ARTICLE 3 CLOSING ............................................................ 4
SECTION 3.1 DELIVERIES BY SELLER......................................... 4
SECTION 3.2 DELIVERIES BY PURCHASER...................................... 5
SECTION 3.3 CLOSING DATE................................................. 5
SECTION 3.4 CONTEMPORANEOUS EFFECTIVENESS................................ 5
ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF SELLER............................ 5
SECTION 4.1 AUTHORIZATION; BINDING EFFECT................................ 5
SECTION 4.2 CONSENTS..................................................... 6
SECTION 4.3 TITLE........................................................ 6
SECTION 4.4 PERMITS...................................................... 6
ARTICLE 5 REPRESENTATIONS AND WARRANTIES OF PURCHASER......................... 6
SECTION 5.1 AUTHORIZATION; BINDING EFFECT................................ 6
SECTION 5.2 CONSENTS..................................................... 6
ARTICLE 6 CERTAIN COVENANTS................................................... 7
SECTION 6.1 REASONABLE COMMERCIAL EFFORTS................................ 7
ARTICLE 7 CONDITIONS PRECEDENT TO CLOSING..................................... 7
SECTION 7.1 GENERAL CONDITIONS........................................... 7
SECTION 7.2 CONDITIONS PRECEDENT TO PURCHASER'S OBLIGATIONS.............. 7
SECTION 7.3 CONDITIONS PRECEDENT TO SELLER'S OBLIGATIONS................. 8
ARTICLE 8 TERMINATION, WAIVER, SURVIVAL AND AMENDMENT......................... 8
SECTION 8.1 TERMINATION.................................................. 8
SECTION 8.2 WAIVER....................................................... 8
SECTION 8.3 SURVIVAL..................................................... 8
SECTION 8.4 AMENDMENT OF AGREEMENT....................................... 8
ARTICLE 9 MISCELLANEOUS PROVISIONS............................................ 8
SECTION 9.1 NOTICES...................................................... 8
SECTION 9.2 ENTIRE AGREEMENT; MODIFICATION............................... 9
SECTION 9.3 ASSIGNMENT; BINDING EFFECT; SEVERABILITY..................... 9
SECTION 9.4 GOVERNING LAW................................................ 9
SECTION 9.5 EXECUTION IN COUNTERPARTS.................................... 9
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EXHIBITS:
--------
Exhibit A - Form of Assignment and Assumption Agreement
Exhibit B - Form of ▇▇▇▇ of Sale
Exhibit C - Forms of Deeds
Exhibit D - Form of Purchaser's Secured Promissory Note
Exhibit E - Form of Security Agreement
SCHEDULES:
---------
Schedule 2.1 - Purchased Assets
Schedule 2.4 - Seller's Pollution Control Revenue Bonds
Schedule 4.2 - Seller Required Consents
Schedule 4.3 - Title
Schedule 5.2 - Purchaser Required Consents
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PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this "Agreement") is made as of the 13th
day of May, 2005, by and between Pennsylvania Power Company, a Pennsylvania
corporation (the "Seller"), and FirstEnergy Generation Corp., an Ohio
corporation (the "Purchaser").
RECITALS
WHEREAS, Seller is the owner all of the Purchased Assets (as defined
herein);
WHEREAS, Seller and Purchaser are parties to that certain Master Facility
Lease (as defined herein), pursuant to which the Purchaser has an option,
exercisable at any time, to purchase the Purchased Assets at the specified
prices set forth in the Master Facility Lease; and
WHEREAS, Purchaser now desires to exercise its option under the Master
Facility Lease to purchase the Purchased Assets from Seller upon the terms and
subject to the conditions set forth in this Agreement.
NOW, THEREFORE, in consideration the premises, the mutual representations,
warranties, covenants and agreements contained herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and subject to the terms and conditions hereinafter set forth,
intending to be legally bound thereby, the parties hereto hereby agree as
follows:
ARTICLE 1
DEFINITIONS
SECTION 1.1 DEFINED TERMS. Capitalized terms used in this Agreement or in
any Schedule delivered pursuant hereto, or Exhibit attached hereto and not
otherwise defined shall have the following:
"Agreement" has the meaning set forth in the first paragraph of this
Agreement.
"Assignment and Assumption Agreement" means the Assignment and Assumption
Agreement between Seller and Purchaser substantially in the form of Exhibit A
hereto, to be delivered at Closing.
"Assumed Liabilities" has the meaning set forth in Section 2.3.
"▇▇▇▇ of Sale" means the ▇▇▇▇ of Sale, substantially in the form of Exhibit
B hereto, to be delivered at the Closing.
"Closing" means the consummation of the transactions contemplated in this
Agreement to occur on the Closing Date.
"Closing Date" has the meaning set forth in Section 3.3.
"Deeds" means the Deeds to be executed by the Seller substantially in the
forms of Exhibit C hereto, to be delivered to Purchaser at the Closing.
"Exhibit" means each Exhibit attached hereto.
"Governmental Body" means any government, any state or other political
subdivision thereof, any legislative, executive or judicial unit or
instrumentality of any governmental entity or any department, commission, board,
agency, bureau, official or other regulatory, administrative or judicial
authority thereof, or any entity (including a court or self-regulatory
organization) exercising executive, legislative, judicial, tax, regulatory or
administrative functions of or pertaining to government.
"Master Facility Lease" means that certain Master Facility Lease, dated as
of January 1, 2001, between Ohio Edison Company, Seller, The Cleveland Electric
Illuminating Company and the Toledo Edison Company, as lessors, and Purchaser,
as lessee.
"Permits" means all permits and licenses, franchises and other governmental
authorizations, approvals, consents, orders, registrations, notices or other
authorizations issued to, or required to be obtained or maintained by, Seller
and necessary for the ownership, operation, maintenance or use of the Purchased
Assets, including any amendment, modification, limitation, condition or renewal
thereof.
"Person" means any individual, corporation, partnership, limited liability
company, firm, association, joint venture, joint stock company, trust,
unincorporated organization or other entity, or any Governmental Body.
"Purchase Price" has the meaning set forth in Section 2.2.
"Purchased Assets" has the meaning set forth in Section 2.1
"Purchaser" has the meaning set forth in the first paragraph of this
Agreement.
"Schedule" means each Schedule delivered pursuant hereto.
"Secured Promissory Note" means the secured promissory note delivered by
Purchaser to Seller in respect of the Purchase Price, substantially in the form
of Exhibit D hereto, to be delivered at Closing.
"Security Agreement" means the Security Agreement between Purchaser and
Seller, substantially in the form of Exhibit E hereto, to be delivered at
Closing.
"Seller" has the meaning set forth in the first paragraph of this
Agreement.
"Seller Required Consents" has the meaning set forth in Section 4.2.
"Seller's Indenture" means the Indenture, dated as of November 1, 1945,
between Seller and The First National Bank of the City of New York (now
Citibank, N.A.), as Trustee, as amended and supplemented.
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SECTION 1.2 OTHER DEFINITIONAL AND INTERPRETIVE MATTERS. Unless otherwise
expressly provided, for purposes of this Agreement, the following rules of
interpretation shall apply:
(a) Any reference in this Agreement to gender shall include all
genders, and words imparting the singular number only shall include the plural
and vice versa.
(b) The provision of a Table of Contents, the division of this
Agreement into Articles, Sections and other subdivisions and the insertion of
headings are for convenience of reference only and shall not affect or be
utilized in construing or interpreting this Agreement. Any reference in this
Agreement to any "Section" is to the corresponding Section of this Agreement
unless otherwise specified.
(c) The words such as "herein," "hereinafter," "hereof," and
"hereunder" refer to this Agreement as a whole and not merely to a subdivision
in which such words appear unless the context otherwise requires.
(d) The word "including" or any variation thereof means "including,
without limitation" and shall not be construed to limit any general statement
that it follows to the specific or similar items or matters immediately
following it.
(e) The Schedules and Exhibits attached to this Agreement shall be
construed with and as an integral part of this Agreement to the same extent as
if the same had been set forth verbatim herein. Notwithstanding the foregoing,
in the event a word or phrase defined in this Agreement is expressly given a
different meaning in any Schedule or Exhibit, such different definition shall
apply only to such Schedule or Exhibit defining such word or phrase
independently, and the meaning given such word or phrase in this Agreement shall
control for purposes of this Agreement, and such alternative meaning shall have
no bearing or effect, on the interpretation of this Agreement.
ARTICLE 2
PURCHASE AND SALE
SECTION 2.1 PURCHASE AND SALE. Upon the terms and subject to the
conditions of this Agreement, on the Closing Date Seller shall grant, sell,
transfer, assign, convey and deliver to Purchaser, and Purchaser shall purchase,
acquire and accept from Seller, all of Seller's right, title and interest in, to
and under the Purchased Assets identified in Schedule 2.1. The Purchased Assets
shall be sold, assigned, transferred and delivered free and clear of the lien of
Seller's Indenture.
SECTION 2.2 PURCHASE PRICE. As consideration for the Purchased Assets and
the assumption of liabilities and obligations hereunder and under the Assignment
and Assumption Agreement, on the Closing Date, Purchaser shall deliver to Seller
the Secured Promissory Note in the principal amount of $125,411,440,
substantially in the form of Exhibit C hereto. The parties agree to adjust the
Purchase Price as and to the extent necessary or appropriate, to reflect the
value of any additional assets or liabilities Seller transfers to Purchaser
hereunder.
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SECTION 2.3 ASSUMED LIABILITIES. On the Closing Date, Purchaser shall
deliver to Seller the Assignment and Assumption Agreement pursuant to which
Purchaser shall assume and agree to discharge when due, without recourse to
Seller, all of the liabilities and obligations of Seller, direct or indirect,
known or unknown, absolute or contingent, which directly relate to the Purchased
Assets and arise from Purchaser's ownership thereof from and after the Closing
Date (collectively, the "Assumed Liabilities"). Seller shall retain
responsibility for all such liabilities and obligations which arise from
Seller's ownership of the Purchased Assets prior to the Closing Date and agrees
to indemnify and hold harmless Purchaser from and against any and all
liabilities, actions, claims, damages, costs and expenses which Purchaser may
suffer or incur with respect to any liabilities or obligations related or
associated with the Purchased Assets arising from Seller's ownership thereof at
any time prior to the Closing Date.
SECTION 2.4 SELLER'S POLLUTION CONTROL REVENUE BONDS. Purchaser agrees
that upon Seller's request, from time to time, either prior to or following the
Closing Date, Purchaser will assume Seller's liabilities and obligations with
respect to the $63,472,167 aggregate principal amount (or any portion thereof)
of outstanding pollution control revenue bonds as set forth on Schedule 2.4 to
this Agreement ("Seller's Pollution Control Bonds"). As and to the extent that
Purchaser assumes such liabilities and obligations after the Closing, it shall
result in a payment by Purchaser under the Secured Promissory Note as provided
therein.
SECTION 2.5 FURTHER ASSURANCES; FURTHER CONVEYANCES AND ASSUMPTIONS. From
time to time, whether before, at or following the Closing Date, Seller and
Purchaser shall, and shall cause their respective affiliates to, execute,
acknowledge and deliver all such further instruments, agreements and other
documents, and shall take such further actions as may be necessary or
appropriate to assure fully to Purchaser and its successors or assigns, all of
the properties, rights, titles and interests conveyed to Purchaser under this
Agreement and to assure fully the assumption of the liabilities and obligations
assumed by Purchaser under this Agreement, Seller's Pollution Control Bonds and
the Assignment and Assumption Agreement, and to otherwise make effective as
promptly as practicable the transactions contemplated hereby and thereby.
ARTICLE 3
CLOSING
At the Closing, the following transactions shall take place:
SECTION 3.1 DELIVERIES BY SELLER. On the Closing Date, Seller shall
deliver, or shall cause to be delivered, to Purchaser the following:
(a) duly executed ▇▇▇▇ of Sale;
(b) duly executed Deeds conveying the real property interests
constituting each of the Purchased Assets listed on Schedule 2.1
hereto;
(c) evidence, reasonably satisfactory to Purchaser, of the obtaining
of the Seller Required Consents, which consents will be in full force and
effect on the Closing Date; and
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(d) all such other assignments and other instruments of assignment,
transfer or conveyance, together with books and records related to the
Purchased Assets, as Purchaser may reasonably request or as may be
otherwise necessary or desirable to evidence and effect the sale, transfer,
assignment, conveyance and delivery of the Purchased Assets to Purchaser
and to put Purchaser in actual possession or control of the Purchased
Assets.
SECTION 3.2 DELIVERIES BY PURCHASER. On the Closing Date, Purchaser shall
deliver, or shall cause to be delivered, to Seller the following:
(a) Purchaser's Secured Promissory Note as provided in Section 2.2;
(b) duly executed Assignment and Assumption Agreement;
(c) duly executed Security Agreement; and
(d) all such other documents and instruments as Seller may reasonably
request or as may be otherwise necessary or desirable to evidence and
effect the acquisition by Purchaser of the Purchased Assets and the
assumption by Purchaser of (i) any of Seller's Pollution Control Bonds
assumed on or prior to the Closing pursuant to Section 2.4 hereof, and (ii)
the Assumed Liabilities.
SECTION 3.3 CLOSING DATE. The Closing shall take place as promptly as
practicable following the date on which the last of the conditions specified in
Article 7 to be satisfied or waived has been satisfied or waived, (the "Closing
Date").
SECTION 3.4 CONTEMPORANEOUS EFFECTIVENESS. All acts and deliveries
prescribed by this Article 3, regardless of chronological sequence, will be
deemed to occur contemporaneously and simultaneously on the occurrence of the
last act or delivery, and none of such acts or deliveries will be effective
until the last of the same has occurred.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents and warrants to Purchaser as follows:
SECTION 4.1 AUTHORIZATION; BINDING EFFECT.
(a) Seller has all requisite corporate power and authority to sell the
Purchased Assets and enter into and deliver this Agreement, the ▇▇▇▇ of Sale and
any related agreements to which it will be a party and to perform its
obligations hereunder and thereunder. The execution and delivery by Seller of
this Agreement, the ▇▇▇▇ of Sale and any related agreements to which it will be
a party and its consummation of the transactions contemplated hereby and thereby
have been duly authorized by all necessary corporate action of Seller.
(b) This Agreement has been duly executed and delivered by Seller and
this Agreement is, and the ▇▇▇▇ of Sale any related agreements to which Seller
will be a party, when duly executed and delivered by Seller, will be, valid and
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legally binding obligations of Seller, enforceable against Seller in accordance
with their respective terms.
SECTION 4.2 CONSENTS. No Permit or consent from, approval, order or
authorization of, or registration, declaration or filing with, any Person is
required to be obtained by Seller in connection with its execution and delivery
of this Agreement, the ▇▇▇▇ of Sale or any related agreement or for the sale of
the Purchased Assets and the consummation by Seller of the transactions
contemplated hereby or thereby except for consents or approvals that are
required to transfer or assign to Purchaser the Purchased Assets, Seller's
Pollution Control Bonds, the Assumed Liabilities or any other rights and
obligations of Seller upon the terms and subject to the conditions of this
Agreement that are set forth in Schedule 4.2 (the "Seller Required Consents").
SECTION 4.3 TITLE. Seller is the record owner of, and has good and valid
title to, the Purchased Assets, and, except as set forth on Schedule 4.3, has
full power and authority to convey title to the Purchased Assets to Purchaser.
SECTION 4.4 PERMITS. Seller owns, holds or possesses all Permits that are
necessary to own the Purchased Assets, all of which are valid and in full force
and effect. Seller is not in violation of or default under any such Permits in
any material respect.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents and warrants to Seller as follows:
SECTION 5.1 AUTHORIZATION; BINDING EFFECT.
(a) Purchaser has all requisite corporate power and authority to
purchase the Purchased Assets and enter into and deliver this Agreement, the
Assignment and Assumption Agreement and any related agreements to which it will
be a party and to perform its obligations hereunder and thereunder. The
execution and delivery by Purchaser of this Agreement, the Assignment and
Assumption Agreement and any related agreements to which it will be a party and
its consummation of the transactions contemplated hereby and thereby have been
duly authorized by all necessary corporate action of Purchaser.
(b) This Agreement has been duly executed and delivered by Purchaser
and this Agreement is, and the Assignment and Assumption Agreement and any
related agreements to which Purchaser will be a party, when duly executed and
delivered by Purchaser, will be, valid and binding obligations of Purchaser,
enforceable against Purchaser in accordance with their respective terms.
SECTION 5.2 CONSENTS. No consent, approval, order or authorization of, or
registration, declaration or filing with, any Person is required to be obtained
by Purchaser in connection with its execution and delivery of this Agreement,
the Assignment and Assumption Agreement or any related agreements or for the
purchase of the Purchased Assets, the assumption of the Assumed Liabilities and
the consummation by Purchaser of the transactions contemplated hereby or
thereby, except for consents or approvals that are required to transfer or
assign to Purchaser the Purchased Assets and Assumed Liabilities or any other
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rights and obligations of Purchaser upon the terms and subject to the Conditions
of this Agreement that are as set forth in Schedule 5.2 (the "Purchaser Required
Consents").
ARTICLE 6
CERTAIN COVENANTS
SECTION 6.1 REASONABLE COMMERCIAL EFFORTS. Each party shall use all
reasonable commercial efforts to take, or cause to be taken, all actions, and to
do, or cause to be done, all things necessary, proper or advisable to consummate
and make effective, in the most expeditious manner practicable, the transactions
contemplated by this Agreement.
ARTICLE 7
CONDITIONS PRECEDENT TO CLOSING
SECTION 7.1 GENERAL CONDITIONS. The respective obligations of Purchaser
and Seller to effect the Closing of the transactions contemplated hereby are
subject to the fulfillment, prior to or at the Closing, of each of the following
conditions:
(a) No order of any governmental body, court or administrative agency
shall be in effect that enjoins, restrains, conditions, makes illegal or
otherwise prohibits consummation of the transactions contemplated by this
Agreement, and there shall not be pending any suit, action or proceeding by any
Governmental Body seeking to enjoin, restrain, condition, make illegal or
otherwise prohibit consummation of the transactions contemplated by this
Agreement.
(b) All other authorizations, consents, orders or approvals of, or
expirations of waiting periods imposed by, any Governmental Body legally
required for the consummation of the transactions contemplated hereby shall have
been obtained or shall have occurred.
SECTION 7.2 CONDITIONS PRECEDENT TO PURCHASER'S OBLIGATIONS. The
obligations of Purchaser to effect the Closing of the transactions contemplated
hereby are subject to the fulfillment, prior to or at the Closing, of each of
the following conditions, any of which conditions may be waived by Purchaser in
its sole discretion:
(a) The representations and warranties of Seller contained in this
Agreement or in any Schedule, Exhibit or document delivered pursuant to the
provisions hereof or in connection with the transactions contemplated hereby
shall be true and correct in all material respects as though such
representations and warranties were made at and as of the Closing Date.
(b) Seller shall have performed in all material respects all
obligations and agreements and complied in all material respects with all
covenants and conditions required by this Agreement to be performed or complied
with by Seller, prior to or at the Closing, including executing and delivering
or causing to be executed and delivered all of the items required by Section
3.1.
(c) All Seller Required Consents shall have been obtained or made and
shall be in full force and effect as of the Closing Date.
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SECTION 7.3 CONDITIONS PRECEDENT TO SELLER'S OBLIGATIONS. The obligations
of Seller to effect the Closing of the transactions contemplated hereby are
subject to the fulfillment, prior to or at the Closing, of each of the following
conditions, any of which conditions may be waived by Seller in its sole
discretion:
(a) The representations and warranties of Purchaser contained in this
Agreement or in any Schedule, Exhibit or document delivered pursuant to the
provisions hereof or in connection with the transactions contemplated hereby
shall be true and correct in all material respects as though such
representations and warranties were made at and as of the Closing Date.
(b) Purchaser shall have performed in all material respects all
obligations and agreements and complied in all material respects with all
covenants and conditions required by this Agreement to be performed or complied
with by Purchaser, prior to or at the Closing, including executing and
delivering or causing to be delivered the items required by Section 3.2.
(c) All Purchaser Required Consents shall have been obtained or made,
and shall be in full force and effect as of the Closing Date.
ARTICLE 8
TERMINATION, WAIVER, SURVIVAL AND AMENDMENT
SECTION 8.1 TERMINATION. Seller and Purchaser may mutually agree to
terminate this Agreement at any time prior to the Closing Date.
SECTION 8.2 WAIVER. Any term or condition hereof may be waived at any time
prior to the Closing Date by the party hereto which is entitled to the benefits
thereof. The failure of either party to enforce at any time any provision of
this Agreement shall not be construed to be a waiver of such provision nor shall
it in any way affect the validity of this Agreement or the right of such party
thereafter to enforce each and every such provision. No waiver of any right in
or breach of this Agreement shall be held to constitute a waiver of any other
right or subsequent breach.
SECTION 8.3 SURVIVAL. Purchaser's representations and warranties in
Article 5 hereof shall survive for a period of six months following the Closing
Date.
SECTION 8.4 AMENDMENT OF AGREEMENT. This Agreement may be amended at any
time prior to the Closing Date by action of the parties hereto; provided,
however, that such amendment shall not be effective unless it shall be evidenced
by a written instrument duly executed on behalf of each party by its duly
authorized officer or employee.
ARTICLE 9
MISCELLANEOUS PROVISIONS
SECTION 9.1 NOTICES. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given upon receipt if: (a)
mailed by certified or registered mail, return receipt requested; (b) sent for
overnight delivery by Federal Express or other express carrier, (c) sent via
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facsimile; or (d) delivered personally, addressed as follows or to such other
address or addresses of which the respective party shall have notified the
other.
If to Seller: Pennsylvania Power Company
c/o FirstEnergy Corp.
▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attn: President
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to Purchaser: FirstEnergy Generation Corp.
c/o FirstEnergy Corp.
▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attn: President
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
SECTION 9.2 ENTIRE AGREEMENT; MODIFICATION. The agreement of Seller and
Purchaser, which consists of this Agreement, the Schedules and Exhibits hereto
and the documents referred to herein, sets forth the entire agreement and
understanding between the parties and supersedes any prior agreement or
understanding, written or oral, relating to the subject matter of such
agreements and schedules.
SECTION 9.3 ASSIGNMENT; BINDING EFFECT; SEVERABILITY. This Agreement may
not be assigned by any party hereto without the other party's written consent.
This Agreement shall be binding upon and inure to the benefit of and be
enforceable by the successors and permitted assigns of each party hereto. The
provisions of this Agreement are severable, and, in the event that any one or
more provisions are deemed illegal or unenforceable, the remaining provisions
shall remain in full force and effect.
SECTION 9.4 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF OHIO AS TO
ALL MATTERS, INCLUDING MATTERS OF VALIDITY, CONSTRUCTION, EFFECT,
ENFORCEABILITY, PERFORMANCE AND REMEDIES.
SECTION 9.5 EXECUTION IN COUNTERPARTS. This Agreement may be executed in
two or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
(signature page follows)
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
PENNSYLVANIA POWER COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President & Controller
FIRSTENERGY GENERATION CORP.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
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EXHIBIT A
Form of Assignment and Assumption Agreement
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EXHIBIT B
Form of ▇▇▇▇ of Sale
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EXHIBIT C
Form of Deeds
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EXHIBIT D
Form of Purchaser's Secured Promissory Note
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EXHIBIT E
Form of Security Agreement
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SCHEDULE 2.1
Purchased Assets
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1. Seller's 33.5% undivided ownership interest in Unit No. 1 of the ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ Generating Station, Borough of Shippingport, Pennsylvania
2. Seller's 9.36% undivided ownership interest in Unit No. 2 of the ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ Generating Station, Borough of Shippingport, Pennsylvania
3. Seller's 6.28% undivided ownership interest in Unit No. 3 of the ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ Generating Station, Borough of Shippingport, Pennsylvania
4. Seller's 20.8% undivided ownership interest in Unit No. 7 of the ▇. ▇.
▇▇▇▇▇▇ Generating Station, Village of ▇▇▇▇▇▇▇▇, Ohio
5. Seller's 14.00% undivided ownership interest in the 48 MW Edgewater Peaking
Facility, Lorain, Ohio
6. Seller's 14.40% undivided ownership interest in the 60 MW Mad River Peaking
Facility, Springfield, Ohio
7. Seller's 14.40% undivided ownership interest in R. E. Burger Plant Diesel
Generators, ▇▇▇▇▇ Township, Ohio
8. Seller's 14.40% undivided ownership interest in ▇. ▇. ▇▇▇▇▇▇ Plant Diesel
Generators, Village of Stratton, Ohio
9. All of Seller's right, title and interest in and to any and all contracts,
fuel, spare parts, inventories, equipment, supplies and other assets
associated with or necessary for the ownership or operation of the
foregoing
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SCHEDULE 2.4
Seller's Pollution Control Revenue Bonds
----------------------------------------
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PRINCIPAL
ISSUER BONDS AMOUNT
------------------------------------------------------- --------------------------------------
Beaver County Industrial Pollution Control Revenue Refunding Bonds, $10,525,000
Development Authority Series 2001-A due 2021
------------------------------------------------------- --------------------------------------
Beaver County Industrial Exempt Facilities Revenue Bonds, 1998 Series A $1,733,896
Development Authority (Shippingport Project) due 2028
------------------------------------------------------- --------------------------------------
Beaver County Industrial Pollution Control Revenue Refunding Bonds, 5.45% $6,950,000
Development Authority 1993 Series A (Mansfield Project) due 2028
----------------------------------------------------------------------------------------------
Beaver County Industrial Environmental Improvement Revenue Refunding $1,000,000
Development Authority Bonds, 5.45% 1993 Series A (Mansfield Project)
due 2013
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▇▇▇▇▇▇▇▇ County Industrial Pollution Control Revenue Refunding Bonds, $17,925,000
Development Authority Series 2001-A due 2017
----------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇ County Industrial Pollution Control Revenue Refunding Bonds, 5.45% $10,600,000
Development Authority 1993 Series A (New Castle Project) due 2017
----------------------------------------------------------------------------------------------
Ohio Air Quality Development Pollution Control Revenue Refunding Bonds, $14,500,000
Authority Series 2002-A (New Castle Project) due 2029
----------------------------------------------------------------------------------------------
Ohio Water Development Pollution Control Revenue Refunding Bonds, 5.95% $238,271
Authority 1993 Series A (New Castle Project) due 2029 -----------
----------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------
TOTAL: $63,472,167
===========
----------------------------------------------------------------------------------------------
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SCHEDULE 4.2
Seller Required Consents
------------------------
New York State Public Service Commission, Public Utilities Commission of Ohio
and New Jersey Board of Public Utilities determinations under Section 32(c) of
the Public Utility Holding Company Act.
Pennsylvania Public Utility Commission approval of this Agreement under Section
2012 of the Pennsylvania Public Utility Code.
Notice of Change of Status filed with the Federal Energy Regulatory Commission
under Section 365.8 of the Regulations under the Federal Power Act.
Order of the Securities and Exchange Commission under the Public Utility Holding
Company Act of 1935 authorizing Seller's acquisition of Purchaser's Secured
Promissory Note.
Release from lien of the Indenture dated as of November 1, 1945, between Seller
and The First National Bank of the City of New York (now Citibank, N.A.), as
Trustee, as supplemented and amended.
Consents under the Reimbursement Agreements, each dated as of July 2, 1997, as
heretofore extended, among Penn Power Company, various banks and ▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, as successor agent, supporting the following pollution control bonds:
Ohio Air Quality Development Authority $4,500,000 State of Ohio Pollution
Control Revenue Refunding Bonds, Series 1997 and Ohio Water Development
Authority $5,800,000 State of Ohio Pollution Control Revenue Refunding Bonds,
Series 1997.
Consents of the issuer of Seller's Pollution Control Bonds listed on Schedule
2.4 to the extent required for any assumption of such Bonds by the Purchaser on
or prior to the Closing in accordance with Section 2.4 hereof and consents, if
any, required of any insurer of such Bonds in respect of any such assumption.
-18-
SCHEDULE 4.3
Title
-----
Security interests created by the Indenture dated as of November 1, 1945,
between Seller and The First National Bank of the City of New York (now
Citibank, N.A.), as Trustee, as supplemented and amended.
-19-
SCHEDULE 5.2
Purchaser Required Consents
---------------------------
New York State Public Service Commission, Public Utilities Commission of Ohio
and New Jersey Board of Public Utilities determinations under Section 32(c) of
the Public Utility Holding Company Act.
Notice of Change of Status filed with the Federal Energy Regulatory Commission
under Section 365.8 of the Regulations under the Federal Power Act.
Release from lien of the Indenture dated as of November 1, 1945, between Seller
and The First National Bank of the City of New York (now Citibank, N.A.), as
Trustee, as supplemented and amended.
Consents of the issuer of Seller's Pollution Control Bonds listed on Schedule
2.4 to the extent required for any assumption of such Bonds by the Purchaser on
or prior to the Closing in accordance with Section 2.4 hereof and consents, if
any, required of any insurer of such Bonds in respect of any such assumption.
-20-
