Exhibit B-5
ASSIGNMENT AND ASSUMPTION AGREEMENT
This Assignment and Assumption Agreement, dated July
1, 2000 (this "Agreement"), is entered into by and between PE
GENERATING COMPANY, LLC, a limited liability company organized
under the laws of Delaware ("Seller"), and ALLEGHENY ENERGY
SUPPLY COMPANY, LLC, a limited liability company organized
under the laws of Delaware ("Purchaser").
W I T N E S S E T H :
WHEREAS, Seller and Purchaser have entered into a
Merger Agreement, dated as of July 1, 2000 (the "Merger
Agreement"), providing, among other things, for the assignment
by Seller to Purchaser of certain rights, and the assumption by
Seller from Purchaser of certain obligations, under the
▇▇▇▇▇▇▇▇ POWER STATION OPERATING AGREEMENT, dated as of June 2,
1952, as amended, among MONONGAHELA POWER COMPANY, an Ohio
corporation, and THE POTOMAC EDISON COMPANY, a Maryland and a
Virginia corporation, (the "Contract").
WHEREAS, Seller desires to assign, transfer and
convey such rights and obligations to Purchaser, subject to the
terms and conditions more fully set forth herein;
WHEREAS, Purchaser desires to acquire such rights and
obligations from Seller, subject to the terms and conditions
more fully set forth herein;
NOW, THEREFORE, the undersigned, in consideration of
the premises, covenants and agreements contained herein and in
the Merger Agreement, do hereby agree as follows:
1. Assignment. For good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, upon the execution of this Agreement by the
parties hereto, Seller does hereby assign, transfer and convey
to Purchaser Seller's right, title and interest in and to the
Contract. Such transfer, conveyance and assignment shall be
effective as of the date hereof.
2. Assumption. For good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, upon the execution of this Agreement by the
parties hereto, Purchaser hereby absolutely and irrevocably
accepts the foregoing assignment and hereby assumes to be
solely liable and responsible for and covenants to be solely
liable and responsible for and to perform all rights,
liabilities, warranty rights and obligations, and similar
obligations of Seller under or pursuant to the Contract, all
subject to the terms and conditions of the Merger Agreement.
Such acceptance, assumption and covenant shall be effective as
of the date hereof.
3. Future Cooperation. Each of the parties hereto
agrees to cooperate at all times from and after the date hereof
with respect to all of the matters described herein, and to
execute such further assignments, agreements, releases,
assumptions, amendments, notifications and other documents as
may be reasonably requested for the purpose of giving effect
to, or evidencing or giving notice of, the transactions
contemplated by this Agreement.
4. Binding Effect; Assigns. This Agreement shall
be binding upon, and shall enure to the benefit of, the parties
hereto and their respective successors and assigns.
5. Third Party Beneficiary. This Agreement is
entered into only for the benefit of the parties and their
respective successors and assigns, and nothing hereunder shall
be deemed to constitute any person a third party beneficiary to
this Agreement.
6. Execution in Counterparts. This Agreement may
be executed in counterparts, each of which shall be deemed an
original, but all of which shall constitute one and the same
instrument.
7. Agreement in Effect. Nothing contained herein
shall in any way amend or modify the provisions set forth in
the Merger Agreement and the Merger Agreement shall remain in
full force and effect.
8. Definitions. Capitalized terms used but not
defined herein shall have the respective meanings ascribed to
such terms in the Merger Agreement.
9. Governing Law. This agreement shall be governed
by, and construed in accordance with, the laws of the State of
Maryland without regard to the conflict of law principles
thereof.
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be duly executed as of the day and year first
above written.
PE GENERATING COMPANY, LLC
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
ALLEGHENY ENERGY SUPPLY COMPANY, LLC
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
Monongahela Power Company hereby consents to the
foregoing assignment as of July 1, 2000.
MONONGAHELA POWER COMPANY
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
