EXHIBIT 2.2
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GRAYS FERRY COGENERATION PARTNERSHIP, : COURT OF COMMON PLEAS
TRIGEN SCHUYLKILL COGENERATlON, INC. : PHILADELPHIA COUNTY
NRGG (SCHUYLKILL) COGENERATION. INC., :
TRIGEN-PHILADELPHIA ENERGY :
CORPORATION and THE CHASE MANHATTAN :
BANK : APRIL TERM, 1998
:
Plaintiffs : NO. 544
v.
:
PECO ENERGY COMPANY, ADWIN :
(SCHUYLKILL) COGENERATION, INC. and :
THE PENNSYLVANIA PUBLIC UTILITY :
C0MMISSION, :
:
Defendants :
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WESTINGHOUSE POWER GENERATION, :
a Division of CBS CORPORATION (Formerly : COURT OF COMMON PLEAS
WESTINGHOUSE ELECTRIC CORPORATION) : PHILADELPHIA COUNTY
:
Plaintiff, :
v. :
: MAY 115RM, 1998
PECO ENERGY CORPORATION :
: NO. 3454
Defendant. :
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FINAL SETTLEMENT DECREE AND ORDER
AND NOW, this 23rd day of April, 1999, the parties to the
above actions having agreed to a final settlement of the above
actions on the following terms, it is ORDERED that:
1. The Agreement for Purchase of Electric Output (Phase I),
the Agreement for Purchase of Electric Output (Phase II), and the
two Contingent Capacity Purchase Addendums to the Agreements for
Purchase of Electric Output (Phase I and Phase 11) between PECO
Energy Company and the Grays Ferry Cogeneration Partnership
(collectively, the "Power Purchase Agreements") are hereby amended
as provided in the Second Amendment Agreement, attached hereto as
Exhibit A and made a part of this Decree and Order. Other than the
amendments contained in the Second Amendment Agreement, the Power
Purchase Agreements remain unchanged.
2. PECO Energy Company and the Grays Perry Cogeneration
Partnership shall specifically perform the Power Purchase
Agreements as modified by the Second Amendment Agreement.
3. The partnership interest of Adwin (Schuylkill)
Cogeneration, Inc. in the Grays Ferry Cogeneration Partnership is
hereby transferred in accordance with Assignment of Partnership
Interest, attached hereto as Exhibit B and made a part of this
Decree and Order.
4. The preliminary injunction issued in the action at April
Term, 1998, No. 544, on May 6, 1998, is hereby dissolved, and the
bond posted by the Grays Ferry Cogeneration Partnership shall be
released to it.
5. The action of plaintiffs Grays Ferry Cogeneration
Partnership, Trigen-Schuylkill Cogeneration, Inc., NRGG
(Schuylkill) Cogeneration, Inc. (now called CogenAmerica Schuylkill
Inc.), and Trigen-Philadelphia Energy Corporation against
defendants PECO Energy Company and Adwin (Schuylkill) Cogeneration,
Inc., No. 544, April Term, 1998, is hereby dismissed with
prejudice, and shall be marked settled, discontinued and ended.
6. The action of plaintiff The Chase Manhattan Bank, suing for
itself and as agent for a syndicate of banks pursuant to the March
1996 Credit Agreement, against defendant PECO Energy Company, No.
544, April Term, 1998, is hereby dismissed with prejudice, and
shall be marked settled, discontinued and ended.
7. The action of plaintiff Westinghouse Power Generation, a
Division of CBS Corporation (formerly Westinghouse Electric
Corporation) against defendant PECO Energy Corporation, No. 3454,
May Term, 1998, is hereby dismissed with prejudice, and shall be
marked settled, discontinued and ended.
8. Neither the final settlement of the parties hereto nor this
Fina1 Settlement Decree and Order shall be deemed a finding for or
against any party or concerning the validity of any claim, defense
or fact alleged in this litigation, and the final settlement of the
parties and this Final Settlement Decree and Order may not be
admitted as evidence of any of the foregoing in any action
involving any party, except an action to enforce the terms hereof.
PECO Energy agrees that it will not rely on any action of the PUC,
or any other governmental agency, prior to the date of this Final
Settlement Decree and Order to exercise any rights under Section
19.1(b) of the Power Purchase Agreements. PECO Energy shall not
terminate, or attempt to terminate the Power Purchase Agreements
pursuant to Section 19.1(b), except upon application to the Court,
after notice to all parties, and a determination by the Court
(after hearing including any evidentiary proceedings as the Court
may deem appropriate to adjudication on the merits) that PECO
Energy has a right to terminate under Section 19.1(b). PECO Energy
agrees that payments made to the Grays Ferry Cogeneration
Partnership pursuant to the preliminary injunction entered in this
action shall not be included in determining any amount of damages
under Section 20.3 of the Power Purchase Agreements.
9. Notwithstanding the dismissal of the above actions, this
Court retains jurisdiction to enforce the obligations of this
Decree and Order.
GRAYS FERRY COGENERATION PECO ENERGY COMPANY
PARTNERSHIP, TRIGEN-SCHUYLKILL
COGENERATION, INC., NRGG
(SCHUYLKILL) COGENERATION, INC.,
and TRIGEN-PHILADELPHIA ENERGY
CORPORATION
/s/ Barnett Satinsky, Esq. /s/ Alan J. Davis, Esq.
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Barnew Satinsky, Esq. Alan J. Davis, Esq.
Fox, Rothschild, O'Brien & Ballard Spahr Andrews &
Frankel, LLP Ingersoll, LLP
Their Attorney Its Attorney
THE CHASE MANHATTAN BANK ADWIN (SCHUYLKILL)
COGENERATION, INC.
/S/ Edward Shapiro, Esq. /s/ Matthew D'Annunzio, Esq.
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Edward Shapiro, Esq. Matthew D'Annunzio, Esq.
Latham & Watkins Mesirov Gelman Jaffe Cramer &
Its Attorney Jamieson, LLP
Its Attorney
WESTINGHOUSE POWER GENERATION
/s/ Frederick W. Bode, III, Esq.
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Frederick W. Bode, III, Esq.
Dickie, McCamey & Chilcote, P.C.
Its Attorney
BY THE COURT:
/s/ Gary S. Glazer, J.
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Honorable Gary S. Glazer, J.
Exhibit A omitted. We agree to furnish a copy of Exhibit A to the
Securities and Exchange Commission upon request.
ASSIGNMENT OF PARTNERSHIP INTEREST
This Assignment Agreement made this ____ day of April, 1999 by
and among Grays Ferry Cogeneration Partnership, a Pennsylvania
General Partnership ("Assignee"), Trigen-Schuylkill Cogeneration,
Inc., a Pennsylvania corporation ("Trigen-Schuylkill"),
CogenAmerica Schuylkill, Inc., a Delaware corporation
("CogenAmerica Schuylkill"), Adwin (Schuylkill) Cogenerattion,
Inc., a Pennsylvania corporation ("Assignor") and PECO Energy
Company ("PECO Energy"), a Pennsylvania corporation.
A. Assignor is a one-third partner in Assignee pursuant to an
Amended and Restated Partnership Agreement dated March 1, 1996 (the
"Partnership Agreement").
B. This Assignment is made pursuant to paragraph 3 of the Final
Settlement Decree and Order entered in consolidated actions at No.
544, April Term, 1998 and No. 3454, May Term, 1998 in the
Philadelphia Court of Common Pleas (the "Final Settlement Decree
and Order").
Now, therefore, the parties hereto in consideration of the
premises hereof and the mutual promises herein, intending to be
legally bound hereby, agree as follows:
1. Assignment of Partnership Interest. Assignor hereby assigns,
transfers and relinquishes to Assignee and Assignee hereby receives
and accepts from Assignor all of Assignor's right, title and
interest in and to the Assignor Partnership Interest free and clear
of all liens, security interests, pledges, mortgages, restrictions,
claims or encumbrances, of any kind whatsoever ("Encumbrances"),
except for the security interest therein of The Chase Manhattan
Bank ("Chase") for itself and as agent for certain other banks.
For the purposes of this Assignment, the "Assignor Partnership
Interest" shall mean the entire one-third partnership interest of
Assignor in Assignee as set forth in the Partnership Agreement. It
is the intent of the parties hereto that after giving effect to
this Assignment, the interests in the Assignee shall be held as
follows: 50% by Trigen-Schuylkill and 50% by CogenAmerica
Schuylkill, formerly known as NRGG (Schuylkill) Cogeneration Inc.
2. Allocation of Income, Losses, Expenses, etc. Assignor
acknowledges that it has from the commencement of Assignee through
the date hereof been allocated for income tax purposes various
items of income, loss, deductions, credits and expenses in relation
to the Assignor Partnership Interest and that such allocation
thereof will be made to Assignor through the date hereof. As a
result of the transfer of the Assignor Partnership Interest to
Assignee hereunder, Assignor acknowledges that except as otherwise
required by law no change or adjustment will be made with respect
to such allocation for income tax purpose through and including the
date hereof and that such allocation shall be made under the
closing-of-the-books method as permitted by Section 706 of the
Internal Revenue Code of 1986, as amended, and the Treasury
Regulations promulgated thereunder. After this Assignment, nothing
shall be allocated for income tax purposes to Assignor.
3. Representations and Warranties of Assignor and PECO Energy.
Assignor and PECO Energy hereby represent, warrant and covenant to
Assignee as follows:
a. Assignor owns outright and has good and marketable title to
the Assignor Partnership Interest free and clear of all
Encumbrances arising by or through Assignor or PECO Energy, except
for the security interest therein of Chase for itself and as agent
for certain other banks, and to the best of their knowledge, no
third party has asserted any claim against the Assignor's
Partnership Interest, and Assignor is transferring to Assignee
hereunder the Assignor Partnership Interest free and clear of all
Encumbrances arising by or through Assignor or PECO Energy, except
for the security interest therein of Chase for itself and as agent
for certain other banks.
b. Assignor has the full legal right, power and authority
required to enter into, execute and deliver this Assignment and
perform its obligations hereunder subject to the security interest
of Chase for itself and as agent for certain other banks. The
execution, delivery and performance of this Assignment (and all
other agreements required to effect transactions contemplated
hereunder) and the consummation of the transactions contemplated
hereunder have been duly authorized by all necessary corporate
action on behalf of Assignor, any direct or indirect subsidiary of
PECO Energy and PECO Energy. This Assignment and each other
agreement to be executed by Assignor to effect the transactions
contemplated by this Assignment is the valid and legally binding
obligation of Assignor, enforceable against Assignor in accordance
with its terms.
c. The execution, delivery and performance of this Assignment
by Assignor do not constitute a violation of, conflict with, result in
a breach of or a default under (i)the Articles or Certificate of
Incorporation or the Bylaws of Assignor, (ii) the terms of any
agreement to which Assignor is a party, (iii) any order,
injunction, decree or other judgement of any kind of any Federal,
state or local court, governmental body, administrative agency or
regulatory authority to which Assignor is a party or by which its
is bound or affected, or (iv) any provision of any Federal or state
law or statute or any ordinance, rule or regulation of any
governmental or regulatory authority.
d. No consent or approval of or filing or registration with any
governmental body or other person or entity is required for or in
connection with the execution, delivery and performance by Assignor
of this Assignment or the consummation of the transactions
contemplated hereunder.
4. Representations and Warranties of Assignee, Trigen-Schuylkill
and CogenAmerica Schuylkill. Assignee, Trigen-Schuylkill and
CogenAmerica Schuylkill hereby represent, warrant and covenant to
Assignor and PECO Energy as follows:
a. Assignee, Trigen-Schuylkill and CogenAmerica Schuylkill have
the full legal right, power and authority required to enter into,
execute and receive this Assignment and perform their obligations
hereunder. The execution, receipt and performance of this
Assignment (and all other agreements required to effect
transactions contemplated hereunder) and the consummation of the
transactions contemplated hereunder have been duly authorized by
all necessary partnership and corporate action on behalf of
Assignee, Trigen-Schuylkill and CogenAmerica Schuylkill. This
Assignment and each other agreement to be executed to effect the
transactions contemplated by this Assignment is the valid and
legally binding obligation of Assignee, Trigen-Schuylkill and
CogenAmerica Schuylkill, enforceable against each of them in
accordance its terms.
b. The execution, receipt and performance of this Assignment by
Assignee, Trigen-Schuylkill and CogenAmerica Schuylkill do not
constitute a violation of, conflict with, result in a breach of or
a default under (i) the Partnership Agreement or the Articles or
Certificate of Incorporation or the Bylaws of Assignee, Trigen-
Schuylkill or CogenAmerica Schuylkill, (ii) the terms of any
agreement to which Assignee, Trigen-Schuylkill or CogenAmerica
Schuylkill is a party, (iii) any order, injunction, decree or other
judgment of any kind of any Federal, State or local court,
governmental body, administrative agency or regulatory authority to
which Assignee, Trigen-Schuylkill or CogenAmerica Schuylkill is a
party or by which it is bound or affected, or (iv) any provision of
any Federal or state law or statute or any ordinance, rule or
regulation of any governmental or regulatory authority.
c. No consent or approval of or filing or registration with any
governmental body or other person or entity is required for or in
connection with the execution, receipt and performance by Assignee,
Trigen-Schuylkill or CogenAmerica Schuylkill of this Assignment or
the consummation of the transactions contemplated hereunder.
d. There have been no and shall be at any time hereafter no
distributions of disbursable assets as defined in the Partnership
Agreement, accruing at any time from and after the formation of the
Partnership through the date of this Assignment, to any or every
partner of the Assignee.
e. Assignee, Trigen-Schuylkill and CogenAmerica
Schuylkill are accepting assignment of the Assignor Partnership
Interest as provided in this Agreement for the purpose of
investment and not with a view to, or for sale in connection with,
any distribution proscribed by the federal securities laws and will
not at any time sell, pledge, or otherwise transfer the Assignor
Partnership Interest other than in transactions which are not in
violation of such laws.
5. Survival of Representations and Warranties. All
representations, warranties, covenants, and agreements under
paragraphs 3 and 4 hereof shall survive the execution and delivery
of this Assignment.
6. Indemnification and Release of Assignor. Except for
liabilities arising under paragraph 3 hereof, Assignee, Trigen-
Schuylkill and CogenAmerica Schuylkill (the "Indemnifying Parties")
hereby (a) release, remise and discharge Assignor, PECO Energy and
their respective officers, directors and affiliates (the
"Indemnified Parties") from any and all claims, actions or causes
of action, suits, arbitration or administrative proceedings,
controversies, judgement or demands of any of the Indemnifying
Parties or anyone claiming through or under any of them and (b)
indemnify, defend and hold harmless the Indemnified Parties from
all damages, liabilities or expenses (including reasonable
attorney's fees), including any liabilities to creditors of
Assignee, that in either case arises out of the Assignor
Partnership Interest, the partnership interest of any Indemnifying
Party in Assignee, or the participation of any Indemnifying party
or Indemnified Party in the business or Assignee whether prior or
after the date of this Assignment.
7. Further Mutual Assurances. At any time and from time to
time after the date hereof and without consideration, Assignee,
Assignor and/or PECO Energy will promptly execute and deliver all
such further documents as may reasonably be requested in order to
more fully consummate the transactions contemplated herein, and in
order to more fully provide Assignor or PECO Energy with a
financial accounting of the assets and liabilities of the
Partnership to enable Assignor and/or PECO Energy to prepare tax
returns and close Assignor's books.
8. Headings. The headings in this Assignment are for
reference purposes only and shall not in any way affect the meaning
or interpretation of this Assignment.
9. Governing Law. This Assignment shall be governed and
construed in accordance with the laws of the Commonwealth of
Pennsylvania applicable to agreements made, delivered and to be
performed entirely within the Commonwealth of Pennsylvania.
10. Entire Agreement. This Assignment together with the
Final Settlement Decree and Order constitute the entire agreement
among the parties with respect to the subject matter hereof and
supersede all prior or contemporaneous agreements, written or oral,
with respect thereof.
11. Counterparts. This Assignment may be executed in
counterparts each of which shall constitute an original and all of
which together shall constitute one agreement.
12. Binding Agreement. This Assignment shall be binding upon
and enure to the benefit of and be enforceable by each of the
parties hereto and their respective successors and assigns.
13. Effective Date. This Assignment shall become effective
upon its execution by Assignor, PECO Energy, Assignee, Trigen-
Schuylkill, CogenAmerica Schuylkill, Chase, Westinghouse Power
Generation and the entry of the Final Settlement Decree and Order
by the Court.
IN WITNESS WHEREOF, the parties hereto have executed this
Assignment as of the date first above written.
Grays Ferry Cogeneration Partnership
By CogenAmerica Schuylkill Cogeneration Inc.,
A general partner
By:
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President
By Trigen-Schuylkill Cogeneration, Inc.
A general partner
By:
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President
CogenAmerica Schuylkill Cogeneration Inc.
By:
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President
Trigen-Schuylkill Cogeneration, Inc.
By:
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President
Adwin (Schuylkill) Cogeneration, Inc.
By:
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Vice President
PECO Energy Company
By:
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CONSENTED TO:
The Chase Manhattan Bank
By:
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Westinghouse Power Generation, a division of
CBS Corporation (Formerly Westinghouse
Electric Corporation)
By:
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