PP FOSSIL PURCHASE AND SALE AGREEMENT by and between PENNSYLVANIA POWER COMPANY (Seller) and FIRSTENERGY GENERATION CORP. (Purchaser)
(Execution
Copy)
Exhibit
10.2
PP
FOSSIL
PURCHASE AND SALE AGREEMENT
by
and
between
PENNSYLVANIA
POWER COMPANY
(Seller)
and
FIRSTENERGY
GENERATION CORP.
(Purchaser)
NY
#648349 v12
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
|
NY
#648349 v12
-i-
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
|
NY
#648349 v12
-ii-
THIS
PURCHASE AND SALE AGREEMENT (this
"Agreement")
is made as of
the 10th 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
NY
#648349 v12
"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.
NY
#648349 v12
-2-
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.
NY
#648349 v12
-3-
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
NY
#648349 v12
-4-
(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 legally binding obligations
of Seller, enforceable against Seller in accordance with their respective
terms.
NY
#648349 v12
-5-
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 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").
NY
#648349 v12
-6-
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.
NY
#648349 v12
-7-
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 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.
NY
#648349 v12
-8-
|
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
parties shall
promptly amend this Agreement as and to the extent necessary to preserve their
underlying commercial agreement as contemplated hereby.
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)
NY
#648349 v12
-9-
IN
WITNESS WHEREOF,
the parties hereto have executed this Agreement as of the day and year first
above written.
| PENNSYLVANIA POWER COMPANY | ||
| |
|
|
| By: | ||
|
Name:
Title:
|
||
| FIRSTENERGY GENERATION CORP. | ||
| |
|
|
| By: | ||
|
Name: Title:
|
||
NY
#648349 v12
-10-
EXHIBIT
A
Form
of Assignment
and Assumption Agreement
NY
#648349 v12
-11-
EXHIBIT
B
Form
of ▇▇▇▇ of
Sale
NY
#648349 v12
-12-
EXHIBIT
C
Form
of
Deeds
NY
#648349 v12
-13-
EXHIBIT
D
Form
of Purchaser’s
Secured Promissory Note
NY
#648349 v12
-14-
EXHIBIT
E
Form
of Security
Agreement
NY
#648349 v12
-15-
SCHEDULE
2.1
Purchased
Assets
|
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 ▇▇▇▇▇▇▇▇,
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
|
NY
#648349 v12
-16-
SCHEDULE
2.4
Seller’s
Pollution Control Revenue Bonds
|
Issuer
|
Bonds
|
Principal
Amount
|
|
Beaver
County
Industrial Development Authority
|
Pollution
Control Revenue Refunding Bonds, Series 2001-A due 2021
|
$
10,525,000
|
|
Beaver
County
Industrial Development Authority
|
Exempt
Facilities Revenue Bonds, 1998 Series A (Shippingport Project) due
2028
|
$
1,733,896
|
|
Beaver
County
Industrial Development Authority
|
Pollution
Control Revenue Refunding Bonds, 5.45% 1993 Series A (Mansfield Project)
due 2028
|
$
6,950,000
|
|
Beaver
County
Industrial Development Authority
|
Environmental
Improvement Revenue Refunding Bonds, 5.45% 1993 Series A (Mansfield
Project) due 2013
|
$
1,000,000
|
|
▇▇▇▇▇▇▇▇
County Industrial Development Authority
|
Pollution
Control Revenue Refunding Bonds, Series 2001-A due 2017
|
$
17,925,000
|
|
▇▇▇▇▇▇▇▇
County Industrial Development Authority
|
Pollution
Control Revenue Refunding Bonds, 5.45% 1993 Series A (New Castle
Project)
due 2017
|
$
10,600,000
|
|
Ohio
Air
Quality Development Authority
|
Pollution
Control Revenue Refunding Bonds, Series 2002-A (New Castle Project)
due
2029
|
$
14,500,000
|
|
Ohio
Water
Development Authority
|
Pollution
Control Revenue Refunding Bonds, 5.95% 1993 Series A (New Castle
Project)
due 2029
|
$
238,271
|
|
TOTAL:
|
$
63,472,167
|
NY
#648349 v12
-17-
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.
NY
#648349 v12
-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.
NY
#648349 v12
-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.
NY
#648349 v12
-20-