Exhibit B-4
AMENDMENT TO PURCHASE AGREEMENT
BY AND AMONG DELMARVA POWER & LIGHT COMPANY,
PECO ENERGY COMPANY, PSEG POWER LLC AND PSEG NUCLEAR LLC
This AMENDMENT dated as of October 3, 2000 (this "Amendment"), by and
among Delmarva Power & Light Company, a Delaware and Virginia Corporation
("DP&L" or "Seller"), PECO Energy Company, a Pennsylvania corporation ("PECO"),
PSEG Power LLC, a Delaware limited liability company ("PSEG Power"), and PSEG
Nuclear LLC, a Delaware limited liability company ("PSEG Nuclear" and, together
with PSEG Power and PECO, "Buyers"), amends in certain aspects the Purchase
Agreement dated as of September 27, 1999 (the "Purchase Agreement") by and among
PECO, PSEG Power and Seller, which was assigned by PSEG Power to its
wholly-owned subsidiary, PSEG Nuclear LLC on May 12, 2000, with respect to the
sale and purchase of certain undivided tenant in common interests in the Peach
Bottom Atomic Power Station. DP&L, PECO, PSEG Power and PSEG Nuclear are
referred to individually as a "Party" and collectively as the "Parties."
Capitalized terms used herein but not defined shall have the meanings given to
such terms in the Purchase Agreement.
WHEREAS, DP&L, PECO and PSEG Power have entered into the Purchase
Agreement pursuant to which DP&L agreed to sell to each of PECO and PSEG Power
one-half of DP&L's interest in the Peach Bottom Atomic Power Station Station;
and
WHEREAS, the parties to the Purchase Agreement have experienced
unanticipated delays in the Closing of the transactions contemplated by such
Purchase Agreement; and
WHEREAS, the Purchase Agreement may be terminated by either Buyers or
Seller at any time prior to the Closing and after the first anniversary of the
Purchase Agreement (the "Termination Date"); and
WHEREAS, pursuant to the Purchase Agreements, PSEG Power assigned its
rights, duties and interest thereunder to PSEG Nuclear; and
WHEREAS, the Parties desire to amend the Purchase Agreement, among
other reasons, to extend the Termination Date.
NOW, THEREFORE, in consideration of the foregoing and of the covenants
and agreements set forth herein, and in consideration of the agreement of the
Parties, including certain Affiliates of PSEG Power, to enter into the Wholesale
Transaction Confirmation, dated the date hereof, for a term commencing October
7, 2000, and intending to be legally bound hereby, the Parties hereby agree to
amend the Purchase Agreement as follows:
1. Section 3.11 of the Purchase Agreement is hereby amended by deleting
such Section in its entirety.
2. Section 7.7 of the Purchase Agreement is hereby amended to read in its
entirety:
"Risk of Loss.
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(a) From September 27, 1999 through (but not including) October 7,
2000, all risk of loss or damage to the assets or properties included in
the Purchased Assets (other than the Decommissioning Funds) shall be borne
by Seller. Notwithstanding any provision hereof to the contrary, if, prior
to October 7, 2000, all or any portion of the Purchased Assets is (i)
condemned or taken by eminent domain or is the subject of a pending or
threatened condemnation or taking which has not been consummated or (ii)
damaged or destroyed by fire or other casualty, Seller shall notify Buyers
promptly in writing of such fact, and (x) in the case of a condemnation or
taking, Seller shall assign or pay, as the case may be, any proceeds
thereof to PECO, to the extent of the PECO Interest, and to PSEG, to the
extent of the PSEG Interest, at the Closing and (y) in the case of a fire
or other casualty, Seller shall either restore such damage or assign the
insurance proceeds therefor (and pay the amount of any deductible and/or
self-insured amount in respect of such casualty) to PECO, to the extent of
the PECO Interest, and to PSEG, to the extent of the PSEG Interest, at the
Closing. Notwithstanding the foregoing, if such condemnation, taking,
damage, destruction or other casualty results in a Material Adverse Effect,
Buyers and Seller shall negotiate to settle the loss resulting from such
condemnation, taking, damage, destruction or other casualty (and such
negotiation shall include the negotiation of a fair and equitable reduction
of the Purchase Price). If no such settlement can be agreed upon within
sixty (60) days after Seller has notified Buyers of such casualty or loss,
then PECO and PSEG, on the one hand, or Seller on the other hand, may
terminate this Agreement pursuant to Section 10.1(h).
(b) From and after October 7, 2000 through (but not including) the
Closing Date, all risk of loss or damage to the assets or properties
included in the Purchased Assets (other than (i) any condemnation or taking
by eminent domain, of the Purchased Assets or (ii) an event or occurrence
which arises out of or relates to the Assumed Decommissioning Liabilities)
shall be borne by PECO, to the extent of the PECO Interest and PSEG, to the
extent of the PSEG Interest. From and after October 7, 2000 through (but
not including) the Closing Date, all risk of loss or damage to the assets
or properties included in the Purchased Assets which arises out of or
relates to (i) any condemnation or taking by eminent domain of the
Purchased Assets or (ii) the Assumed Decommissioning Liabilities shall be
borne by Seller.
If, on or after October 7, 2000 and before the Closing Date, all or
any portion of the Purchased Assets is (i) condemned or taken by eminent
domain or is the subject of a pending or threatened condemnation or taking
which has not been consummated or (ii) damaged or destroyed by fire or
other casualty, Seller shall notify Buyers promptly in writing of such
fact. In the case of a fire or other casualty, Seller shall assign the
insurance proceeds therefor to PECO, to the extent of the PECO Interest,
and to PSEG, to the extent of the PSEG Interest, at the earlier of the
Closing or the receipt of such proceeds.
Buyers shall not have the right to terminate this Agreement pursuant
to Section 10.1(h) in the event such, damage, destruction or other casualty
(other than (i) any condemnation or taking by eminent domain, of the
Purchased Assets or (ii) an event or occurrence which arises out of or
relates to the Assumed Decommissioning Liabilities) results in a Material
Adverse Effect. In the event of (i) any condemnation or taking by eminent
domain of the Purchased Assets or (ii) an event or occurrence which arises
out of or relates to the Assumed Decommissioning Liabilities, in each case,
which results in a Material Adverse Effect, Buyers and Seller shall
negotiate to settle the loss resulting from such event (and such
negotiation shall include the negotiation of a fair and equitable reduction
of the Purchase Price). If no such settlement can be agreed upon within
sixty (60) days after Seller has notified Buyers of such event, then PECO
and PSEG, on the one hand, or Seller on the other hand, may terminate this
Agreement pursuant to Section 10.1(h).
(c) Notwithstanding anything in this Section 7.7 to the contrary, if the
Purchase Agreement terminates prior to the Closing, the risk of loss shall
be borne by Seller as provided for in Section 10.2, and, pursuant to the
Transaction Confirmation "Price" Sections (2) and (3), Seller shall
reimburse Buyers for any capital expenditures paid by Buyers for Seller's
respective share of Peach Bottom."
3. Section 8.2(g) of the Purchase Agreement is hereby amended by deleting
such Section in its entirety.
4. Section 8.2(h) of the Purchase Agreement is hereby amended to read in
its entirety:
"There shall not have occurred and be continuing a Material Adverse
Effect, provided that Buyers shall be obligated to consummate the
transactions contemplated hereby if such Material Adverse Effect arises out
of or relates to any of the Assumed Liabilities and arises out of or
relates to events or occurrences on or after October 7, 2000."
5. Section 8.3(g) of the Purchase Agreement is hereby amended by deleting
such Section in its entirety.
6. Section 8.3(h) of the Purchase Agreement is hereby amended to read in
its entirety:
"There shall not have occurred and be continuing a Material Adverse Effect,
provided that Buyers shall be obligated to consummate the transactions
contemplated hereby if such Material Adverse Effect arises out of or relates to
any of the Assumed Liabilities and arises out of or relates to events or
occurrences on or after October 7, 2000."
7. Section 8.4(j) of the Purchase Agreement is hereby amended by deleting
such Section in its entirety
8. Section 8.4(k) of the Purchase Agreement is hereby amended to read in
its entirety:
"Seller shall have received a private letter ruling issued by the
Internal Revenue Service to the effect that Seller will be allowed
current ordinary deductions for federal income tax purposes for any
amounts treated as realized by Seller, or otherwise recognized as
income to Seller, as a result of Buyers' assumption of the Assumed
Decommissioning Liabilities, provided, however that if the PECO
Restructuring shall have occurred prior to the Closing, the condition
set forth in this Section 8.4(k) shall be satisfied only if such
private letter ruling contemplates and, accurately sets forth as
factual matters in a manner reasonably satisfactory to Seller (i) that
the Closing and the closing of the Collateral Agreement will occur at
different times and are independent of each other and (ii) that the
PECO Restructuring has occurred."
9. Section 10.1(b)(iii) of the Purchase Agreement is hereby amended to
read in its entirety:
"(iii) at any time after September 26, 2001, 11:59 a.m., New York
City time, if the Closing shall not have occurred on or before such
date (the "Termination Date")."
10. Section 10.1(h) of the Purchase Agreement is hereby amended to read in
its entirety:
"This Agreement may be terminated by Seller, on the one hand
(subject to Seller's obligation to comply with Section 7.7(c) after such
termination), or PECO and PSEG acting together, on the other hand, upon written
notice to the other Party, in accordance with the provisions of Section 7.7(a)
or 7.7(b), as the case may be, provided that the Party seeking to so terminate
shall have complied in all material respects with its obligations under Section
7.7(a) or 7.7(b)."
11. Section 11.9(b)(A) of the Purchase Agreement is hereby amended to read
in its entirety:
"impair or materially delay the consummation of the transactions
contemplated hereby, it being acknowledged and agreed to by the Seller
and Buyers that the assignment, transfer, pledge, conveyance or
disposition pursuant to Section 11.9(b) by PECO to an affiliate of
PECO ("GENCO"), (the "PECO Restructuring") shall not be deemed to
impair or materially delay the consummation of the transactions
contemplated hereby, or"
12. Section 11.2 of the Purchase Agreement is hereby amended to read in
its entirety:
Except to the extent provided herein, whether or not the transactions
contemplated hereby are consummated, all costs, fees and expenses
incurred in connection with this Agreement and the transactions
contemplated hereby shall be borne by the Party incurring such costs,
fees and expenses, including the fees and commissions referred to in
Section 11.3. During the first year after the date of this Agreement,
in no event shall Seller bear or be liable for the payment of any
costs, fees or expenses (other than attorneys' fees and expenses and
the fees and commissions referred to in Section 11.3) incurred by
Seller to obtain any approval of FERC or the NRC Approvals included
among the PECO Required Regulatory Approvals, PSEG Required Regulatory
Approvals, or Seller's Required Regulatory Approvals, or to transfer
the Decommissioning Funds to Buyer at the Closing, to the extent that
the aggregate amount of such costs, fees and expenses exceeds,
together with all such costs, fees and expenses which Seller bears or
is liable for under the Collateral Agreement, $200,000; and Buyers
shall equally bear and be liable to the extent of such excess. After
September 27, 2000, subject to Sections 7.9(a) and (b), all costs,
fees and expenses incurred in connection with this Agreement and the
transactions contemplated hereby shall be borne by the Party incurring
such costs, fees and expenses.
13. The Parties agree that Exhibit A to the Purchase Agreement (Amendment
to Owners Agreement) shall be amended at the Closing, in form and substance
mutually satisfactory to the Parties, to give effect to the transactions
contemplated by the Transaction Confirmation (as defined below) and this
Amendment.
14. Subject to the terms and conditions of this Amendment, each Party
shall use its Commercially Reasonable Efforts to take, or cause to be
taken, all actions, and to do, or cause to be done, all things necessary,
proper or advisable under Law to effect the separate Closing of the
Purchase Agreement and the Collateral Agreement as soon as practicable.
Such actions shall include, without limitation, each Party using its
Commercially Reasonable Efforts to ensure the separate satisfaction of the
conditions precedent to its obligations under the Purchase Agreement and
the Collateral Agreement, including obtaining all necessary consents,
approvals, and authorizations of third parties and Governmental Authorities
required to be obtained in order separately to consummate the transactions
contemplated by the Purchase Agreement and the Collateral Agreement. No
Party shall, without the prior written consent of the other Parties, take
or fail to take any other action, which would reasonably be expected to
prevent or materially impede, interfere with or delay the separate Closing
of the Purchase Agreement or the Collateral Agreement; provided that the
good faith exercise of any approval rights or discretion provided for in
the Purchase Agreement and the Collateral Agreement shall not be deemed in
violation of the requirements of this Section 14.
15. Reference is made to that certain Wholesale Transaction Confirmation
of even date herewith, a copy of which is attached as Annex I hereto (the
"Transaction Confirmation"). The responsibility for the payment,
performance and discharge of all liabilities and obligations in respect of
nuclear fuel supplies, operation and maintenance costs and capital
expenditures, and allocation of responsibility for other liabilities and
obligations, set forth in the Transaction Confirmation shall be governed by
the Transaction Confirmation, notwithstanding any provision of the Purchase
Agreement (including, without limitation, Sections 3.7 and 7.1 of the
Purchase Agreement), as amended hereby, or the Owners Agreement to the
contrary.
16. Except as herein modified or as modified by the Transaction
Confirmation, the terms and conditions of the Purchase Agreement shall
remain unmodified and shall remain in full force and effect and are hereby
ratified and confirmed. This Amendment shall be construed as one with the
Purchase Agreement, and the Purchase Agreement shall, where the context
requires, be read and construed throughout so as to incorporate this
Amendment.
17. This Amendment shall be governed by and construed in accordance with
the laws of the Commonwealth of Pennsylvania (without giving effect to
conflicts of law principles) as to all matters, including validity,
construction, effect, performance and remedies.
18. This Amendment may be executed in counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the
same instrument.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed and delivered by their duly authorized officers as of the date first
written above.
DELMARVA POWER & LIGHT COMPANY
By: _____________________________
Name: _____________________________
Title: _____________________________
PECO ENERGY COMPANY
By: _____________________________
Name: _____________________________
Title: _____________________________
PSEG POWER LLC
By: _____________________________
Name: _____________________________
Title: _____________________________
PSEG NUCLEAR LLC
By: _____________________________
Name: _____________________________
Title: _____________________________