SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OF 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported) June 22, 2001
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Atlantic City Electric Company
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Exact Name of Registrant Specified in Charter
New Jersey 1-3559 21-0398280
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(State or Other Jurisdiction (Commission (IRS Employer
of Incorporation) File Number) Identification No.)
800 King Street, P.O. Box 231, Wilmington, Delaware 19899
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(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code (302) 429-3018
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(Former Name or Former Address, if Changed Since Last Report)
Item 5. Other Events.
As previously reported in Note 11 to the Consolidated Financial
Statements included in Item 8 of Part II of Atlantic City Electric
Company's ("ACE") 2000 Annual Report on Form 10-K, ACE and
Delmarva Power & Light Company ("DPL") entered into agreements
with NRG Energy, Inc. ("NRG") for the sale of their respective
interests in non-strategic baseload fossil fuel- fired electric
generating plants in January 2000.
To facilitate the future completion of these sales by ACE, ACE
agreed to alter its agreements with NRG and NRG Power Marketing,
Inc., an affiliate of NRG ("NRG Power"), effective June 22, 2001,
as follows:
o ACE entered into amendments to its sales agreements with
NRG to provide for the separate sale by ACE of its
interests in each of (i) Deepwater Station, (ii) B.L.
England Station, and (iii) Conemaugh and Keystone
Stations, in each case, subject to the receipt of the
required approvals from the New Jersey Board of Public
Utilities and the satisfaction of other closing
conditions;
o ACE entered into amendments to its sales agreements with
NRG to provide for the extension of the termination dates
of the sale agreements between ACE and NRG relating to
Deepwater Station, Conemaugh and Keystone Stations and
B.L. England Station; and
o ACE terminated its existing power purchase agreement with
NRG Power.
Subject to the receipt of the required approvals from the New
Jersey Board of Public Utilities and the satisfaction of other
closing conditions, Conectiv expects the sale by ACE of certain
electric generating assets to be completed during 2001. However,
there can be no assurances that such approvals will be obtained,
or that such sales will be completed.
The description of the transactions set forth herein is qualified
in its entirety by reference to the sales agreements between ACE
and NRG, including the respective amendments thereto, copies of
which are filed as exhibits to this report and incorporated by
reference herein.
On June 25, 2001, Conectiv issued a press release relating to such
transactions, a copy of which is filed as an exhibit to this
report and is incorporated by reference herein.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
(a) Not applicable.
(b) Not applicable.
(c) Exhibits.
2.1 Purchase and Sale Agreement by and between Atlantic City Electric
Company and NRG Energy, Inc., dated as of January 18, 2000 (wholly
owned electric generating plants) (Incorporated by reference to
Exhibit 10-B to Atlantic City Electric Company's Annual Report on
Form 10-K for the fiscal year ended December 31, 2000).
2.2 Purchase and Sale Agreement by and between Atlantic City Electric
Company and NRG Energy, Inc., dated as of January 18, 2000
(jointly owned electric generating plants) (Incorporated by
reference to Exhibit 10-C to Atlantic City Electric Company's
Annual Report on Form 10-K for the fiscal year ended December 31,
2000).
2.3 Amendment to the Purchase and Sale Agreement by and between Atlantic
City Electric Company and NRG Energy, Inc., dated as of June 22, 2001
(wholly owned electric generating plants) (Filed herewith).
2.4 Amendment to the Purchase and Sale Agreement by and between Atlantic
City Electric Company and NRG Energy, Inc., dated as of June 22, 2001
(jointly owned electric generating plants) (Filed herewith).
99.1 Press release issued by Conectiv dated June 25, 2001 (Filed herewith).
SIGNATURE
Pursuant to the requirements of the Securities Exchange
Act of 1934, the registrant has duly caused this report to be signed on its
behalf by the undersigned hereunto duly authorized.
ATLANTIC CITY ELECTRIC COMPANY
By: /s/ John C. Van Roden
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John C. Van Roden
Chief Financial Officer
June 28, 2001
EXHIBIT 2.3
ACE WHOLLY OWNED AGREEMENT
AMENDMENT
TO THE
PURCHASE AND SALE AGREEMENT
BY AND BETWEEN
ATLANTIC CITY ELECTRIC COMPANY
AND
NRG ENERGY, INC.
AMENDMENT TO THE PURCHASE AND SALE AGREEMENT (the
"Amendment") by and between Atlantic City Electric Company, a New Jersey
corporation ("ACE" or "Seller"), and NRG Energy, Inc., a Delaware
corporation ("Buyer"), dated as of June 22, 2001. Seller and Buyer may each
be referred to herein individually as a "Party" and collectively as the
"Parties." Capitalized terms used and not otherwise defined in this
Amendment shall have the respective meanings assigned to them in the
Agreement (as defined below).
WHEREAS, Seller and Buyer are Parties to that certain
Purchase and Sale Agreement, dated as of January 18, 2000 (the
"Agreement"), providing for the sale and assignment by Seller of the
Purchased Assets and the Assumed Liabilities and the purchase and
assumption by Buyer of the Purchased Assets and the Assumed Liabilities,
upon the terms and conditions set forth in the Agreement; and
WHEREAS, the Closing of the transactions contemplated by
the Agreement, the ACE Related Purchase Agreement and the DP&L Related
Purchase Agreements has been unexpectedly delayed; and
WHEREAS, as a result of the delay of the Closing, the
Parties desire to amend the Agreement as set forth herein, the ACE Related
Purchase Agreement and the DP&L Related Purchase Agreements as set forth in
the respective amendments to such agreements, which are being entered into
simultaneously with this Amendment, to, among other things, extend the
termination date of the Agreement, the ACE Related Purchase Agreement and
the DP&L Related Purchase Agreements.
NOW THEREFORE, for good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, Seller and Buyer
hereby agree as follows:
ARTICLE I
Amendment of Certain Provisions of the Agreement
Section 1.1 Certain Definitions. Section 1.1 of the
Agreement is hereby amended to include the following additional provisions:
(155) "ACE Master Power Purchase Agreement" means the Master Power
Purchase Agreement between ACE and NRG Power Marketing Inc., dated
April 11, 2001, as amended through the date hereof, and attached
as Exhibit J to this Agreement.
(156) "ACE 400 MWh Energy Purchase Confirmation" means the
transaction confirmation letter, dated April 11, 2001, as amended,
through the date hereof, issued by ACE to NRG Power Marketing Inc.
under the ACE Master Power Purchase Agreement, relating to the
purchase of 400 MWh of firm electric energy, and attached as
Exhibit K to this Agreement.
(157) "ACE 400 MW Capacity Purchase Confirmation" means the
transaction confirmation letter, dated April 11, 2001, as amended
through the date hereof, issued by ACE to NRG Power Marketing Inc.
under the ACE Master Power Purchase Agreement, relating to the
purchase of 400 MW of firm electric PJM capacity credits, and
attached as Exhibit L to this Agreement.
(158) "B.L. England Station Transactions" means the transactions
contemplated by this Agreement to the extent relating to the B.L.
England Station, it being understood that such transactions,
together with the Deepwater Station Transactions, constitute and
include all of the transactions contemplated by this Agreement.
(159) "Deepwater Station Transactions" means the transactions
contemplated by this Agreement to the extent relating to the
Deepwater Station, it being understood that such transactions,
together with the B.L. England Station Transactions, constitute
and include all of the transactions contemplated by this
Agreement.
(160) "Deepwater Substation" means the name of the industrial
establishment as to which ACE has filed a Remediation Agreement
Application pursuant to ISRA.
(161) "Distribution Substation Yard" means Distribution Substation
Yard as such term is used in the Remediation Agreement
Applications submitted by Deepwater Power LLC and ACE pursuant to
ISRA for the Deepwater Station and Deepwater Substation,
respectively.
(162) "Initial Additional NOx Emission Allowances" means the
amount of additional NOx Emission Allowances Seller will owe Buyer
after Closing or Buyer will owe Seller after Closing as determined
by Section 6.15(b)(ii).
(163) "Main Substation Yard" means Main Substation Yard as such
term is used in the Remediation Agreement Applications submitted
by Deepwater Power LLC and ACE pursuant to ISRA for the Deepwater
Station and Deepwater Substation, respectively.
(164) "Supplemental Prorated NOx Emission Allowances" means the
amount of NOx Emission Allowances calculated in accordance with
Section 6.15(b)(iii).
Section 1.2 Closing.
(a) Section 3.1 of the Agreement is hereby amended
by renumbering such section as Section 3.1(a).
(b) Section 3.1 of the Agreement is hereby amended
to include the following additional provisions:
"(b) Notwithstanding any provision hereof to the contrary, the
Parties acknowledge and agree that, in the event that the
conditions precedent to the Closing set forth in Sections 7.1 (a)
and (c), and Sections 7.2 (a), (c), and (g) of this Agreement,
shall have been satisfied or, to the extent permitted by
applicable Law, waived by the Party for whose benefit such
conditions precedent exist, but only with respect to the B.L.
England Station Transactions or the Deepwater Station
Transactions, but not both, then the Parties shall proceed to
consummate the transactions for which such conditions have been so
satisfied or waived in accordance with this Section 3.1 with the
following effect:
(i) with respect to such of the B. L. England Station Transactions
or the Deepwater Station Transactions as are first consummated by
the Parties hereunder (such transactions referred to as the "First
Transactions" and such Station referred to as the "First
Station"), the terms "Closing" and "Closing Date", as used herein,
shall mean, with respect to the representations, warranties,
covenants and agreements set forth herein relating to such First
Station, including the Purchased Assets, Excluded Assets, Assumed
Liabilities and Excluded Liabilities relating thereto, the Closing
of the First Transactions and the date on which such Closing
actually occurs, respectively;
(ii) with respect to such of the B. L. England Station
Transactions or the Deepwater Station Transactions as are last
consummated by the Parties hereunder (such transactions referred
to as the "Last Transactions" and such Station referred to as the
"Last Station"), the terms "Closing" and "Closing Date", as used
herein, shall mean, with respect to the representations,
warranties, covenants and agreements set forth herein relating to
such Last Station, including the Purchased Assets, Excluded
Assets, Assumed Liabilities and Excluded Liabilities relating
thereto, the Closing of the Last Transactions and the date on
which such Closing actually occurs, respectively;
(iii) (A) no representation or warranty contained in this
Agreement with respect to the First Transactions or the First
Station shall survive the Closing of the First Transactions, and
(B) no representation or warranty contained in this Agreement with
respect to the Last Transactions or the Last Station shall
terminate by reason of the Closing of the First Transactions or
survive the Closing of the Last Transactions;
(iv) all covenants and agreements of the Parties contained in the
Agreement to the extent relating to the First Transactions which,
in accordance with their respective terms, are to be performed and
complied with (A) prior to or at the Closing shall be of no
further force or effect after the Closing of the First
Transactions or (B) on or prior to the Closing Date shall be of no
further force or effect after the Closing Date of the First
Transactions, in each case, solely to the extent relating to the
First Transactions; provided that no Party hereto shall be
relieved of any liability hereunder for any wilful breach of its
obligations hereunder;
(v) all covenants and agreements of the Parties contained in the
Agreement to the extent relating to the First Transactions which, in
accordance with their respective terms, are to be performed and
complied with (A) after the Closing Date shall be performed or
complied with after the Closing Date of the First Transactions or
(B) after the Closing shall be performed or complied with after
the Closing of the First Transactions, in each case, solely to the
extent relating to the First Transactions;
(vi) all covenants and agreements of the Parties contained in the
Agreement to the extent relating to the Last Transactions which,
in accordance with their respective terms, are to be performed and
complied with (A) prior to or at the Closing shall be of no
further force or effect after the Closing of the Last Transactions
or (B) on or prior to the Closing Date shall be of no further
force or effect after the Closing Date of the Last Transactions,
in each case, solely to the extent relating to the Last
Transactions; provided that no Party hereto shall be relieved of
any liability hereunder for any wilful breach of its obligations
hereunder;
(vii) all covenants and agreements of the Parties contained in the
Agreement to the extent relating to the Last Transactions which,
in accordance with their respective terms, are to be performed and
complied with (A) after the Closing Date shall be performed or
complied with after the Closing Date of the Last Transactions or
(B) after the Closing shall be performed or complied with after
the Closing of the Last Transactions, in each case, solely to the
extent relating to the Last Transactions, it being understood that
no Party shall have any obligation to perform or comply with any
such covenant or agreement after the Closing Date or the Closing
of the First Transaction and prior to or at the Closing Date or
the Closing of the Last Transaction; and
(viii) all conditions to the respective obligations of the Parties
to effect the transactions contemplated by this Agreement and set
forth in Article VII shall, from and after the Closing of the
First Transaction, be of no further force or effect with respect
to the First Transaction."
Section 1.3 Relationship of the Agreement and the Related
Purchase Agreements. Section 3.9 of the Agreement is hereby amended by
deleting such Section in its entirety.
Section 1.4 Employees.
(a) Section 6.8(g) of the Agreement is hereby
amended and restated in its entirety to read as follows:
"(g) As soon as practicable, and in any event within ninety (90)
days after the Closing Date, Buyer shall establish or make
available to Transferred Union Employees a defined contribution
pension plan (or plans) and trust (or trusts) intended to qualify
under Sections 401(a) and 501(a) of the Code (such plan or plans
referred to as "Buyer's Savings Plan") in which all Transferred
Union Employees shall be eligible to participate as of the later
of the Closing Date or the Buyer's Savings Plan's effective date.
Buyer's Savings Plan shall provide for deferral options and
employer matching contributions with respect to the Transferred
Union Employees who are participants in the Conectiv Savings &
Investment Plan and the Atlantic City Electric Co. Savings Plan B
(collectively, "Seller's Savings Plans") as of the Closing Date
(such employees, the "Transferred Savings Employees") that are no
less favorable than those provided as of immediately prior to the
Closing Date to the Transferred Savings Employees under the
Seller's Savings Plans. Buyer shall provide a make-whole payment
outside of Buyer's Savings Plan to reflect lost matching
contributions on account of any delay in enrollment to any
Transferred Employee who enrolls in Buyer's Savings Plan within
the first thirty (30) days after the Closing. Contributions to the
Seller's Savings Plans with respect to the Transferred Savings
Employees shall cease effective as of the Closing Date, subject to
Section 6.8(l). Each Transferred Savings Employee shall be
afforded the option of transferring his or her account balance
into the Buyer's Savings Plan; provided, however, that if Seller
is able to obtain a favorable ruling from the Internal Revenue
Service to the effect that the consummation of the transactions
contemplated hereby shall constitute a sale of substantially all
of the assets used in a trade or business within the meaning of
Section 401(k)(10) of the Code, each Transferred Savings Employee
shall be afforded the option of rolling over his or her account
balance into the Buyer's Savings Plan. Such transfers or rollovers
shall satisfy the requirements of Section 414(l) of the Code and
Section 208 of ERISA and shall be in the form of cash or other
property, as Seller and Buyer shall mutually agree prior to such
transfer or rollover. Each Transferred Savings Employee shall be
treated as a terminated employee, and shall be afforded the
opportunity to receive a distribution from Seller's Savings Plans,
to elect a direct rollover of such distribution into Buyer's
Savings Plan, or to leave his or her account balance in Seller's
Savings Plans (if such balance exceeds $5,000). Any such rollovers
shall satisfy the requirements of Section 208 of ERISA and shall
be in the form of cash or other property, as Seller and Buyer
shall mutually agree prior to such rollover. Prior to such
rollover, Buyer will provide Seller with such documents and other
information as Seller shall reasonably request to assure itself
that Buyer's Savings Plan and the trust or trusts established
pursuant thereto contain participant loan provisions and
procedures necessary to effect the orderly transfer of participant
loan balances associated with the rollover. Notwithstanding
anything in this Section 6.8(f) to the contrary, no such rollover
shall take place unless and until Seller has received written
evidence of the adoption of Buyer's Savings Plan and the trust (or
trusts) thereunder by Buyer and either (A) a copy of a favorable
determination letter issued by the Internal Revenue Service and
satisfactory to Seller's counsel with respect to Buyer's Savings
Plan or (B) an opinion, satisfactory to Seller's counsel, of
Buyer's counsel to the effect that the terms of Buyer's Savings
Plan and its related trust or trusts qualify under Sections 401(a)
and 501(a) of the Code. Buyer and Seller shall provide each other
with such records and information as may be necessary or
appropriate to carry out their obligations under this Section
6.8(f) for the purposes of administration of Buyer's Savings Plan,
and they shall cooperate in the filing of documents required by
the transactions described herein."
(b) Section 6.8 of the Agreement is hereby amended
to include the following additional provisions:
"(k) Within sixty (60) days after the Closing, Seller shall (a)
provide Buyer with a written statement setting forth the number of
unused hours of vacation, accrued vacation, carryover vacation,
perfect attendance holidays and floating holidays accrued during
the period commencing on January 1 of the year during which the
Closing occurs and ending on the day immediately preceding the
Closing Date ("Accrued and Unused Vacation") for Transferred
Non-Union Employees and (b) transfer funds to Buyer in an amount
sufficient to pay for Accrued and Unused Vacation, such amount to
be based on the wages and salaries of Transferred Non-Union
Employees in effect on the day immediately preceding the Closing
Date; provided that, upon receipt of notice from Seller, Buyer
shall promptly reimburse Seller for any and all payments in
respect of Accrued and Unused Vacation made by Seller to
Transferred Non-Union Employees after the Closing, whether as the
result of any suit, action or proceeding, or otherwise. From and
after the Closing, Buyer shall recognize the right of Transferred
Employees to Accrued and Unused Vacation during the remainder of
the year during which the Closing occurs and, with respect to
Transferred Union Employees, in accordance with the applicable
IBEW Collective Bargaining Agreement and applicable Law.
(l) In the event that the Closing Date occurs on any day other
than the day immediately following the day on which any regular
pay period of Seller relating to any Transferred Employees ends,
then, notwithstanding Buyer's obligations hereunder, in order to
accommodate Buyer's request, Seller shall, in respect of such
period, (i) pay to such Transferred Employees the salary or wages
to which such Transferred Employees are entitled, (ii) pay to the
applicable Governmental Authorities all required amounts in
respect of payroll and similar withholding Taxes relating to such
salaries and wages, and (iii) make any regular deposits or
contributions, including deposits or contributions of matching
funds to Seller's Benefit Plans on behalf of such Transferred
Employees. Buyer shall, within 30 days after the Closing,
reimburse Seller for all amounts in respect of such salaries,
wages, Taxes, deposits and contributions to the extent relating to
the period from and after the Closing Date."
Section 1.5 Environmental Matters.
(a) Section 6.10(c)(i) is hereby amended as
follows:
(i) by adding, at the beginning of the
first sentence, the phrase "Except as set forth in subsection
(iii) below, "; and
(ii) by deleting the phrase at the
beginning of second sentence, "Notwithstanding anything to the
contrary herein," and replacing it with the phrase
"Notwithstanding anything to the contrary herein, and subject to
Section 6.10(c)(iii),".
(b) Section 6.10(c) is hereby amended to include
the following additional provision:
"(iii) Notwithstanding the above, Seller, to the extent authorized
by the NJDEP, shall be responsible for compliance with ISRA after
the Closing with respect to the Main Substation Yard and the
Distribution Substation Yard for the Deepwater Station and shall
be responsible for the costs incurred in connection with such
compliance, provided, that Buyer shall reimburse Seller for all
costs or Indemnifiable Losses incurred to the extent that such
costs or Indemnifiable Losses arise in connection with the
investigation or Remediation of contamination arising from or
relating to assets (including the oil filter house and the
subsurface vault located in the Main Substation Yard) other than
the Transmission Assets."
(c) Section 6.15(a) is hereby amended by
renumbering such section as Section 6.15(a)(i).
(d) Section 6.15(a) is hereby amended to include
the following additional provision:
"(ii) In furtherance, but not in limitation of Section 3.1(b), if
the B.L. England Station and the Deepwater Station are not
transferred to Buyer at the same time, the SO2 Allowances and NOx
Emission Allowances that have been allocated to or are otherwise
related to the Last Station, as set forth on Schedules 2.1(g) and
2.1(h), shall not be transferred to Buyer and shall remain the
property of Seller until such time as the Last Station is
transferred to Buyer. In addition, in calculating whether Seller
owes Buyer additional Emission Allowances as a result of Seller's
operation of the Stations prior to the Closing or whether Buyer
owes Seller additional Emission Allowances, as set forth in
Section 6.15(b), the Parties shall not make any such calculations
with respect to the Last Station until such time as the Last
Station is transferred to Buyer; provided that nothing herein is
intended to relieve the Parties from their obligations to make
such calculations with respect to the First Station."
(e) Section 6.15(b)(ii) is hereby amended and
restated in its entirety to read as follows:
"(ii) Initial Additional NOx Emission Allowances.
(A) Seller shall provide Initial Additional NOx Emission
Allowances to Buyer based on the following formula: (1) Seller's
emissions of NOx (in tons) from the units subject to the NOx
Budget Program of New Jersey for the period of the year from and
including May 1 of the year in which the transaction closes up to
but not including the Closing Date, or September 30 of said year,
whichever comes first; minus (2) Seller's Initial Prorated NOx
Emission Allowances. Seller's Initial Prorated NOx Emission
Allowances shall be determined by adding all of the NOx Emission
Allowances set forth on Schedule 6.15(b)(ii) from and including
May 1 of the year the transaction closes up to but not including
the Closing Date, or September 30 of the year the transaction
closes, whichever comes first. If the result of this calculation is
less than zero, then Buyer shall transfer to Seller an amount of
Initial Additional NOx Emission Allowances equal to the absolute
value of the result of the calculation set forth in this subsection.
(B) If Schedule 6.15(b)(ii) and Schedule 6.15(b)(iii) are
not finalized as of the date of the execution of this Agreement,
Seller hereby covenants to act in good faith to promptly prepare
such schedules after the relevant Governmental Authority finalizes
the initial allocation of NOx Emission Allowances for the year
2001. Schedule 6.15(b)(ii) shall be prepared as follows. First,
Seller shall develop a projection of its NOx emissions for each of
the Purchased Assets for each calendar day from May 1, 2001 to and
including September 30, 2001. Second, Seller shall take the NOx
Emission Allowances set forth on Schedule 2.1(g) for each
Purchased Asset for the year 2001 and allocate the NOx Emission
Allowances to each calendar day for the period May 1, 2001 to and
including September 30, 2001, so that for each such calendar day,
the ratio of said NOx Emission Allowances to the total number of
NOx Emission Allowances for the Purchased Asset set forth on
Schedule 2.1(g) for the year 2001 shall equal the ratio of the
projected NOx emissions for each such calendar day to the total
number of projected NOx emissions for the Purchased Asset for the
period May 1, 2001 to and including September 30, 2001. When
completed, Schedule 6.15(b)(ii) shall be a day-by-day schedule of
NOx Emission Allowances for each of the Purchased Assets. The
final form and substance of Schedule 6.15(b)(ii) shall be subject
to the agreement of Seller and Buyer, acting in good faith,
consistent with the terms of this subsection. Schedule
6.15(b)(iii) shall be based on the ratios calculated in connection
with the development of Schedule 6.15(b)(ii)."
(f) Section 6.15(b)(iii) is hereby amended by
renumbering such section as Section 6.15(b)(iv) and is hereby amended and
restated in its entirety to read as follows:
"(iv) If it appears with respect to any Station that the Closing
of the transactions contemplated by this Agreement will not occur
until after December 31, 2001, Seller shall prepare with respect
to such Station schedules that will accomplish the same purpose as
Schedules 6.15(b)(i), 6.15(b)(ii) and 6.15(b)(iii) for calendar
year 2002 (or such other calendar year(s) in which the transaction
closes). Such schedules shall be prepared consistent with the
terms of Section 6.15(b)."
(g) Section 6.15(b) is hereby amended to include
the following additional provision:
"(iii) Supplemental Prorated NOx Emission Allowances The
Supplemental Prorated NOx Emission Allowances shall be determined
as follows: (A) if the Closing of the B.L. England Station
Transactions occurs at a time other than at the time of the
Closing of the Deepwater Station Transactions, the number of NOx
Emission Allowances issued to Seller by the NJDEP after the
Closing Date, during the year of the Closing, shall be multiplied
by 18.5%; (B) the product calculated in (A) shall be multiplied by
86%.; (C) the percentages on Schedule 6.15(b)(iii) shall be added
from and including May 1 of the year the transaction closes up to
but not including the Closing Date, or September 30 of the year
the transaction closes, whichever comes first; and (D) the number
of NOx Emission Allowances calculated in (B) shall be multiplied
by the percentage calculated in (C). Seller shall retain the
Supplemental Prorated NOx Emission Allowances. If B.L. England
Station is later transferred to Buyer, Supplemental Prorated NOx
Emission Allowances with respect to B.L. England Station shall be
determined using the same formula, with the exception that in (A),
NOx Emission Allowances issued to Seller by the NJDEP after the
Closing Date, during the year of the Closing, shall be multiplied
by 81.5%."
(h) Section 6.15(c) is hereby amended and restated
in its entirety to read as follows:
"Buyer shall deliver to Seller, within thirty (30) days after
Closing, a statement indicating the amount of SO2 Allowances and
Initial Additional NOx Emission Allowances it is owed, or that it
owes Seller, in accordance with the formulas set forth in
subsections (b)(i) and (ii), respectively (the "Statement"). The
Statement shall be based on verified CEMs data for SO2 and NOx and
shall include sufficient information to be evaluated by Seller. In
the event that Seller is in disagreement with the Statement,
Seller shall, within ten (10) calendar days after receipt of the
Statement, notify Buyer of such disagreement setting forth with
specificity the nature of such disagreement. If Seller fails to
notify Buyer of all disagreements within the ten (10) calendar
days provided for herein, then the Statement, as delivered by
Buyer pursuant to Section 6.15(c), shall be final, binding and
conclusive on the Parties hereto and the Party owing SO2
Allowances and/or Initial Additional NOx Emission Allowances to
the other Party shall transfer such SO2 Allowances and/or Initial
Additional NOx Emission Allowances (or make a payment in lieu of
transferring such Emissions Allowances in accordance with Section
6.15(d)). If Seller is in disagreement with the Statement and
notifies Buyer within such ten (10) calendar day period, then the
Parties shall promptly attempt to resolve such disagreement by
negotiation. If the Parties are unable to resolve such
disagreements within fifteen (15) calendar days following such
notice of disagreement, the Parties shall appoint an Independent
Accounting Firm within thirty (30) calendar days following such
notice, which shall review the Statement and any additional
information related to the Statement submitted by either of the
Parties and shall determine the amount of SO2 Allowances and/or
Initial Additional NOx Emission Allowances owed by either of the
Parties. Resolution of any such disagreements shall be made by the
Independent Accounting Firm in a writing addressed to all Parties
within thirty (30) calendar days following referral to it by the
Parties of such disagreements in accordance with this Agreement.
The findings of such Independent Accounting Firm shall be final,
binding and conclusive on the Parties. All costs and fees of the
Independent Accounting Firm shall be borne by Buyer and Seller
equally."
(i) Section 6.15(d) is hereby amended and restated
in its entirety to read as follows:
"The Party or Parties owing SO2 Allowances and/or Initial
Additional NOx Emission Allowances calculated pursuant to this
Section shall transfer the number of SO2 Allowances and/or Initial
Additional NOx Emission Allowances owed to the other Party by no
later than thirty (30) days prior to the dates by which Buyer must
have sufficient SO2 Allowances and/or Initial Additional NOx
Emission Allowances in its compliance accounts in order to comply
with Title IV of the federal Clean Air Act or the NOx Budget
Program of New Jersey. The NOx Emission Allowances and SO2
Allowances transferred hereunder shall have a vintage year that is
the same as the year the transaction closes or, solely in the case
of SO2 Allowances, a prior vintage year, unless the Party that is
owed such Emission Allowances waives such requirement in writing.
If the Party owing SO2 Allowances and/or Initial Additional NOx
Emission Allowances does not or cannot meet this provision, the
other Party shall be entitled to (i) acquire SO2 Allowances and/or
NOx Emission Allowances equal to the number of additional SO2
Allowances and/or Initial Additional NOx Emission Allowances
calculated pursuant to this Section and (ii) seek compensation
from the owing Party for the cost of acquiring such additional SO2
Allowances and/or NOx Emission Allowances, respectively
("Allowance Cost"), which shall be calculated based on the market
price for such allowances as of the date such allowances are
purchased; provided, that a Party that is owed SO2 Allowances
and/or Initial Additional NOx Emission Allowances and has the
right to purchase such Emission Allowances pursuant to this
Section must purchase such Emission Allowances no later than 180
days after the date(s) by which the owing Party was to provide
such Emission Allowances to the owed Party, as set forth in the
first sentence of this subsection, in order to be entitled to
receive compensation under this subsection. The Party that has the
right to purchase SO2 Allowances and/or NOx Emission Allowances
pursuant to this Section shall also be entitled to receive simple
interest at the Prime Rate on the Allowance Cost, which shall
accrue from the date(s) payment is due as provided in the
following sentence through and including the date of payment by
the owing Party. Payment shall be made no later than thirty (30)
days after the owing Party receives an invoice from the owed Party
for compensation, which invoice shall specify the market price of
the Emissions Allowances acquired by the owed Party; provided,
that the owing Party shall not be obligated to make such payment
if it disputes the amount of compensation claimed by the owed
Party within fifteen (15) days after receipt of the invoice from
the owed Party. Any disputes concerning the compensation owed to
Buyer under Section 6.15(d) shall be resolved through good faith
negotiations between the Parties. Buyer and Seller shall be
obligated to act reasonably to mitigate the Allowance Cost as set
forth herein. Furthermore, notwithstanding anything to the
contrary herein, Seller shall have no obligation to indemnify
Buyer for any penalties or fines or other costs or expenses
related to Buyer's failure to comply with the legal requirements
of Title IV of the Clean Air Act or the NOx Budget Program of New
Jersey."
Section 1.6 Reimbursement of Certain Metering Expenses.
Section 6.17 of the Agreement is hereby amended and restated in its entirety
to read as follows:
"From and after the Closing, Buyer shall (a) reimburse Seller for
reasonable amounts expended by Seller on or prior to June 30, 2002
in connection with the installation, renovation or improvement of
revenue quality meters and related equipment up to an aggregate
amount of $1,500,000; and (b) cooperate with Seller as fully as
reasonably possible in order to facilitate Seller's installation,
renovation or improvement of revenue quality meters and related
equipment to the extent that such installation, renovation or
improvement requires that Seller gain access to the Real Property
after the Closing Date. From the Closing Date through the date on
which the installation, renovation or improvement of revenue
quality meters is completed, the interim metering methodology set
forth on Exhibit M to this Agreement shall be used to compensate
ACE for station loads and losses occurring from the Closing Date
through such date."
Section 1.7 Conditions to the Obligations of Buyer.
Section 7.1(j) of the Agreement is hereby amended and restated in its
entirety to read as follows:
"The ACE 400 MWh Energy Purchase Confirmation and the ACE 400 MW
Capacity Purchase Confirmation shall have been terminated in all
respects with no further Liability on the part of Buyer or any
Affiliate of Buyer, and Buyer shall have received evidence of such
termination in form and substance reasonably satisfactory to
Buyer."
Section 1.8 Conditions to the Obligation of Seller.
Section 7.2(i) of the Agreement is hereby amended and restated in its
entirety to read as follows:
"The ACE 400 MWh Energy Purchase Confirmation and the ACE 400 MW
Capacity Purchase Confirmation shall have been terminated in all
respects with no further Liability on the part of Seller or any
Affiliate of Seller, and Seller shall have received evidence of
such termination in form and substance reasonably satisfactory to
Seller."
Section 1.9 Certain Termination Provisions. Section 9.1(b)
of the Agreement is hereby amended and restated in its entirety to read as
follows:
"This Agreement may be terminated by Seller, on the one
hand, or Buyer, on the other hand, upon written notice to the
other Party, (i) at any time prior to the Closing if any court of
competent jurisdiction shall have issued an order, judgment or
decree permanently restraining, enjoining or otherwise prohibiting
the Closing, and such order, judgment or decree shall have become
final and nonappealable; (ii) at any time prior to the Closing if
any Law shall have been enacted or issued by any Governmental
Authority which, directly or indirectly, prohibits the
consummation of the transactions contemplated by this Agreement or
by any Additional Agreement; or (iii) solely with respect to the
Deepwater Station Transactions, at any time after October 31,
2001, if the Closing of the Deepwater Station Transactions shall
not have occurred on or before such date; and solely with respect
to the B.L. England Station Transactions, at any time after
December 31, 2001, if the Closing of the B.L. England Station
Transactions shall not have occurred on or before such date;
provided, however, that the right to terminate this Agreement
under this Section 9.1(b)(iii) shall not be available to any Party
whose breach of this Agreement has caused, or resulted in, the
failure of the Closing to occur on or before such date."
Section 1.10 Effect of Termination. Section 9.2 of the
Agreement is hereby amended and restated in its entirety to read as follows:
"Upon termination of this Agreement prior to the Closing
pursuant to Section 9.1, this Agreement shall be null and void and
of no further force or effect (except that the provisions set
forth in Section 6.3, this Section 9.2 and Article X, and the
Confidentiality Agreement, shall remain in full force and effect
in accordance with their respective terms); and no Party shall
have any further Liability under this Agreement (other than for
any wilful breach of its obligations hereunder), provided however,
that, in the event that this Agreement is terminated pursuant to
Section 9.1(b)(iii) with respect to the B.L. England Station
Transactions or the Deepwater Station Transactions, but not both,
the preceding sentence shall apply to the First Transactions and
the First Station for which this Agreement shall have been so
terminated, but shall remain in full force and effect for the Last
Transactions and Last Station."
Section 1.11 No Survival. Section 10.6 of the Agreement
is hereby amended and restated in its entirety to read as follows:
"Subject to Section 3.1(b), no representation or warranty
contained in this Agreement shall survive the delivery of the
Limited Warranty Deeds and the Closing. Subject to Section 3.1(b),
the covenants and agreements of the Parties contained in this
Agreement shall survive the Closing in accordance with their
respective terms."
ARTICLE II
Release, Waiver and Additional Provisions
Section 2.1 Release and Waiver of Claims Against Seller
Parties.
(a) Buyer and each of its Affiliates hereby
unconditionally and irrevocably releases, acquits and forever discharges
Seller and its Affiliates, shareholders, officers, directors, employees,
agents, representatives, successors and assigns (collectively, the "Seller
Parties"), effective as of the date hereof, of and from, and hereby
unconditionally and irrevocably waives, any and all claims, demands, debts,
losses, costs, expenses, proceedings, judgments, damages, actions, causes
of action, suits, contracts, agreements, obligations, accounts and
liabilities of any kind or character whatsoever, known or unknown,
suspected or unsuspected, in contract or in tort, at law or in equity
("Claims"), that the Buyer or any of its Affiliates alone or with any other
Person had, now has, or might hereafter have against the Seller Parties or
any of them jointly and/or severally, for or by reason of any matter,
circumstance, event, action, omission, cause or thing whatsoever occurring
or existing on or before the date of this Amendment, arising under,
relating to or in connection with the Agreement (or any of the Exhibits or
Schedules thereto) and which are set forth in Schedule 2.1 to this
Amendment.
(b) Buyer hereby represents and warrants to
Seller that, as of the date of this Amendment, to Buyer's knowledge, Buyer
does not have any Claims against any Seller Party, other than as set forth
in Schedule 2.1 to this Amendment, which Claims have been released and
waived pursuant to Section 2.1(a).
Section 2.2 Release and Waiver of Claims Against Buyer
Parties.
(a) Seller and each of its Affiliates hereby
unconditionally and irrevocably releases, acquits and forever discharges
Buyer and its Affiliates, shareholders, officers, directors, employees,
agents, representatives, successors and assigns (collectively, the "Buyer
Parties"), effective as of the date hereof, of and from, and hereby
unconditionally and irrevocably waives, any and all Claims, that the Seller
or any of its Affiliates alone or with any other Person had, now has, or
might hereafter have against the Buyer Parties or any of them jointly
and/or severally, for or by reason of any matter, circumstance, event,
action, omission, cause or thing whatsoever occurring or existing on or
before the date of this Amendment, arising under, relating to or in
connection with the Agreement (or any of the Exhibits or Schedules thereto)
and which are set forth in Schedule 2.2 to this Amendment.
(b) Seller hereby represents and warrants to
Buyer that, as of the date of this Amendment, to Seller's knowledge, Seller
does not have any Claims against any Buyer Party, other than as set forth
in Schedule 2.2 to this Amendment, which Claims have been released and
waived pursuant to Section 2.2(a).
Section 2.3 Disclosed Matters. Pursuant to Section 6.7 of
the Agreement, Buyer and Seller hereby acknowledge and agree that the
supplemental or amended disclosure set forth in the Schedules to the
Agreement being delivered by Seller to Buyer contemporaneously with this
Amendment and dated as of the date hereof shall, for purposes of the
Agreement, as amended hereby, including for purposes of determining whether
the conditions to Closing set forth in Article VII of the Agreement are
satisfied, be deemed to have been disclosed as of January 18, 2000.
ARTICLE III
Miscellaneous Provisions
Section 3.1 Amendment and Modification. Subject to
applicable Law, this Amendment may be amended, supplemented or otherwise
modified only by written agreement entered into by all Parties.
Section 3.2 Waiver of Compliance; Consents. To the extent
permitted by applicable Law, any failure of any of the Parties to comply
with any covenant, agreement or condition set forth herein may be waived by
the Party entitled to the benefit thereof only by a written instrument
signed by such Party, but any such waiver shall not operate as a waiver of,
or estoppel with respect to, any prior or subsequent failure to comply
therewith.
Section 3.3 Notices. All notices and other communications
hereunder shall be in writing and shall be given in accordance with Section
10.8 of the Agreement.
Section 3.4 Assignment. This Amendment shall be binding
upon and inure to the benefit of the Parties and their respective
successors and permitted assigns, but neither this Amendment nor any of the
rights, interests, obligations or remedies hereunder shall be assigned by
any Party hereto, including by operation of law, without the prior written
consent of the other Parties, nor is this Amendment intended to confer upon
any other Person any rights, interests, obligations or remedies hereunder.
Without limiting the generality of the foregoing, no provision of this
Amendment shall create any third-party beneficiary rights in any Employee
or former employee of Seller (including any beneficiary or dependent
thereof) in respect of continued employment or resumed employment, and no
provision of this Amendment shall create any rights in any such Persons in
respect of any benefits that may be provided, directly or indirectly, under
any employee benefit plan or arrangement except as expressly provided for
thereunder. Notwithstanding the foregoing, (i) Seller may assign all or any
portion of its rights, interests, obligations and remedies hereunder to
Conectiv, a Delaware corporation, or any of Conectiv's wholly owned
subsidiaries; provided, however, that no such assignment shall (A)
materially impair or delay the consummation of the transactions
contemplated hereby or by the Agreement or (B) relieve or discharge Seller
from any of its obligations hereunder or under the Agreement; and (ii)
Buyer may assign all or any portion of its rights, interests, obligations
and remedies hereunder to (A) any of its wholly owned subsidiaries or (B) a
trustee, lending institution or other Person solely for purposes of
financing the transactions contemplated hereby; provided, however, that no
such assignment shall (A) materially impair or delay the consummation of
the transactions contemplated hereby or by the Agreement or (B) relieve or
discharge Buyer from any of its obligations hereunder or under the
Agreement.
Section 3.5 Governing Law. This Amendment shall be
governed by and construed in accordance with the laws of the State of
Delaware (without giving effect to conflicts of law principles) as to all
matters, including validity, construction, effect, performance and
remedies. Venue in any and all suits, actions and proceedings related to
the subject matter of this Amendment shall be in the state and federal
courts located in and for the State of Delaware (the "Courts"), which shall
have exclusive jurisdiction for such purpose, and the Parties hereby
irrevocably submit to the exclusive jurisdiction of such courts and
irrevocably waive the defense of an inconvenient forum to the maintenance
of any such suit, action or proceeding. Service of process may be made in
any manner recognized by such Courts. Each of the Parties hereby
irrevocably waives its right to a jury trial arising out of any dispute in
connection with this Amendment or the transactions contemplated hereby.
Section 3.6 Counterparts. 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.
Section 3.7 Interpretation. The article and section
headings contained in this Amendment are solely for the purpose of
reference, are not part of the agreement of the parties and shall not in
any way affect the meaning or construction of this Amendment. Ambiguities
and uncertainties in the wording of this Amendment shall not be construed
for or against any Party, but shall be construed in the manner that most
accurately reflects the Parties' intent as of the date of this Amendment.
Each Party acknowledges that it has been represented by counsel in
connection with the review and execution of this Amendment, and,
accordingly, there shall be no presumption that this Amendment or any
provision hereof be construed against the Party that drafted this
Amendment.
Section 3.8 Effect; Entire Agreement. Except as amended,
supplemented or otherwise modified by this Amendment, the Agreement shall
remain in full force and effect, and the valid and binding obligation of
each Party. The Agreement, as amended hereby (including the Schedules and
Exhibits thereto), together with the Confidentiality Agreement, the ACE
Related Purchase Agreement, as amended, and the DP&L Related Purchase
Agreements, as amended, embody the entire agreement and understanding of
the Parties hereto and thereto in respect of the transactions contemplated
by the Agreement, as amended hereby, the Additional Agreements, the ACE
Related Purchase Agreement, as amended, and the DP&L Related Purchase
Agreements, as amended, and supersedes all prior agreements and
understandings between or among the Parties with respect to the
transactions contemplated hereby or thereby.
[Signature Page Follows]
IN WITNESS WHEREOF, the Parties have caused this
Amendment to be duly executed and delivered as of the date and year first
written above.
ATLANTIC CITY ELECTRIC COMPANY
By: /s/ Philip S. Reese
------------------------------------
Philip S. Reese
Vice President and Treasurer
NRG ENERGY, INC.
By: /s/ David H. Peterson
------------------------------------
David H. Peterson
Chairman, President and CEO
(ACE WHOLLY OWNED STATIONS)
EXHIBIT 2.4
ACE JOINTLY OWNED AGREEMENT
AMENDMENT
TO THE
PURCHASE AND SALE AGREEMENT
BY AND BETWEEN
ATLANTIC CITY ELECTRIC COMPANY
AND
NRG ENERGY, INC.
AMENDMENT TO THE PURCHASE AND SALE AGREEMENT (the
"Amendment") by and between Atlantic City Electric Company, a New Jersey
corporation ("ACE" or "Seller"), and NRG Energy, Inc., a Delaware
corporation ("Buyer"), dated as of June 22, 2001. Seller and Buyer may each
be referred to herein individually as a "Party" and collectively as the
"Parties." Capitalized terms used and not otherwise defined in this
Amendment shall have the respective meanings assigned to them in the
Agreement (as defined below).
WHEREAS, Seller and Buyer are Parties to that certain
Purchase and Sale Agreement, dated as of January 18, 2000 (the
"Agreement"), providing for the sale and assignment by Seller of the
Purchased Assets and the Assumed Liabilities and the purchase and
assumption by Buyer of the Purchased Assets and the Assumed Liabilities,
upon the terms and conditions set forth in the Agreement; and
WHEREAS, the Closing of the transactions contemplated by
the Agreement, the ACE Related Purchase Agreement and the DP&L Related
Purchase Agreements has been unexpectedly delayed; and
WHEREAS, as a result of the delay of the Closing, the
Parties desire to amend the Agreement as set forth herein, and the ACE
Related Purchase Agreement and the DP&L Related Purchase Agreements as set
forth in the respective amendments to such agreements, which are being
entered into simultaneously with this Amendment, to, among other things,
extend the termination date of the Agreement, the ACE Related Purchase
Agreement and the DP&L Related Purchase Agreements.
NOW THEREFORE, for good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, Seller and Buyer
hereby agree as follows:
ARTICLE I
Amendment of Certain Provisions of the Agreement
Section 1.1 Relationship of the Agreement and the Related
Purchase Agreements. Section 3.9 of the Agreement is hereby amended by
deleting such Section in its entirety.
Section 1.2 Certain Closing Conditions.
(a) Section 7.1(j) of the Agreement is hereby
amended by deleting such Section in its entirety.
(b) Section 7.2(i) of the Agreement is hereby
amended by deleting such Section in its entirety.
Section 1.3 Certain Termination Provisions. Section 9.1(b)
of the Agreement is hereby amended and restated in its entirety to read as
follows:
"This Agreement may be terminated by Seller, on the one hand, or
Buyer, on the other hand, upon written notice to the other Party,
(i) at any time prior to the Closing if any court of competent
jurisdiction shall have issued an order, judgment or decree
permanently restraining, enjoining or otherwise prohibiting the
Closing, and such order, judgment or decree shall have become
final and nonappealable; (ii) at any time prior to the Closing if
any Law shall have been enacted or issued by any Governmental
Authority which, directly or indirectly, prohibits the
consummation of the transactions contemplated by this Agreement or
any Additional Agreement; or (iii) at any time after October 31,
2001, if the Closing shall not have occurred on or before such
date; provided, however, that the right to terminate this
Agreement under this Section 9.1(b)(iii) shall not be available to
any Party whose breach of this Agreement has caused, or resulted
in, the failure of the Closing to occur on or before such date."
ARTICLE II
Release, Waiver and Additional Provisions
Section 2.1 Release and Waiver of Claims Against Seller
Parties.
(a) Buyer and each of its Affiliates hereby
unconditionally and irrevocably releases, acquits and forever discharges
Seller and its Affiliates, shareholders, officers, directors, employees,
agents, representatives, successors and assigns (collectively, the "Seller
Parties"), effective as of the date hereof, of and from, and hereby
unconditionally and irrevocably waives, any and all claims, demands, debts,
losses, costs, expenses, proceedings, judgments, damages, actions, causes
of action, suits, contracts, agreements, obligations, accounts and
liabilities of any kind or character whatsoever, known or unknown,
suspected or unsuspected, in contract or in tort, at law or in equity
("Claims"), that the Buyer or any of its Affiliates alone or with any other
Person had, now has, or might hereafter have against the Seller Parties or
any of them jointly and/or severally, for or by reason of any matter,
circumstance, event, action, omission, cause or thing whatsoever occurring
or existing on or before the date of this Amendment, arising under,
relating to or in connection with the Agreement (or any of the Exhibits or
Schedules thereto) and which are set forth in Schedule 2.1 to this
Amendment.
(b) Buyer hereby represents and warrants to
Seller that, as of the date of this Amendment, to Buyer's knowledge, Buyer
does not have any Claims against any Seller Party, other than as set forth
in Schedule 2.1 to this Amendment, which Claims have been released and
waived pursuant to Section 2.1(a).
Section 2.2 Release and Waiver of Claims Against Buyer
Parties.
(a) Seller and each of its Affiliates hereby
unconditionally and irrevocably releases, acquits and forever discharges
Buyer and its Affiliates, shareholders, officers, directors, employees,
agents, representatives, successors and assigns (collectively, the "Buyer
Parties"), effective as of the date hereof, of and from, and hereby
unconditionally and irrevocably waives, any and all Claims, that the Seller
or any of its Affiliates alone or with any other Person had, now has, or
might hereafter have against the Buyer Parties or any of them jointly
and/or severally, for or by reason of any matter, circumstance, event,
action, omission, cause or thing whatsoever occurring or existing on or
before the date of this Amendment, arising under, relating to or in
connection with the Agreement (or any of the Exhibits or Schedules thereto)
and which are set forth in Schedule 2.2 to this Amendment.
(b) Seller hereby represents and warrants to
Buyer that, as of the date of this Amendment, to Seller's knowledge, Seller
does not have any Claims against any Buyer Party, other than as set forth
in Schedule 2.2 to this Amendment, which Claims have been released and
waived pursuant to Section 2.2(a).
Section 2.3 Disclosed Matters. Pursuant to Section 6.6 of
the Agreement, Buyer and Seller hereby acknowledge and agree that the
supplemental or amended disclosure set forth in the Schedules to the
Agreement being delivered by Seller to Buyer contemporaneously with this
Amendment and dated as of the date hereof shall, for purposes of the
Agreement, as amended hereby, including for purposes of determining whether
the conditions to Closing set forth in Article VII of the Agreement are
satisfied, be deemed to have been disclosed as of January 18, 2000.
ARTICLE III
Miscellaneous Provisions
Section 3.1 Amendment and Modification. Subject to
applicable Law, this Amendment may be amended, supplemented or otherwise
modified only by written agreement entered into by all Parties.
Section 3.2 Waiver of Compliance; Consents. To the extent
permitted by applicable Law, any failure of any of the Parties to comply
with any covenant, agreement or condition set forth herein may be waived by
the Party entitled to the benefit thereof only by a written instrument
signed by such Party, but any such waiver shall not operate as a waiver of,
or estoppel with respect to, any prior or subsequent failure to comply
therewith.
Section 3.3 Notices. All notices and other communications
hereunder shall be in writing and shall be given in accordance with Section
10.8 of the Agreement.
Section 3.4 Assignment. This Amendment shall be binding
upon and inure to the benefit of the Parties and their respective
successors and permitted assigns, but neither this Amendment nor any of the
rights, interests, obligations or remedies hereunder shall be assigned by
any Party hereto, including by operation of law, without the prior written
consent of the other Parties, nor is this Amendment intended to confer upon
any other Person any rights, interests, obligations or remedies hereunder.
Without limiting the generality of the foregoing, no provision of this
Amendment shall create any third-party beneficiary rights in any Employee
or former employee of Seller (including any beneficiary or dependent
thereof) in respect of continued employment or resumed employment, and no
provision of this Amendment shall create any rights in any such Persons in
respect of any benefits that may be provided, directly or indirectly, under
any employee benefit plan or arrangement except as expressly provided for
thereunder. Notwithstanding the foregoing, (i) Seller may assign all or any
portion of its rights, interests, obligations and remedies hereunder to
Conectiv, a Delaware corporation, or any of Conectiv's wholly owned
subsidiaries; provided, however, that no such assignment shall (A)
materially impair or delay the consummation of the transactions
contemplated hereby or by the Agreement or (B) relieve or discharge Seller
from any of its obligations hereunder or under the Agreement; and (ii)
Buyer may assign all or any portion of its rights, interests, obligations
and remedies hereunder to (A) any of its wholly owned subsidiaries or (B) a
trustee, lending institution or other Person solely for purposes of
financing the transactions contemplated hereby; provided, however, that no
such assignment shall (A) materially impair or delay the consummation of
the transactions contemplated hereby or by the Agreement or (B) relieve or
discharge Buyer from any of its obligations hereunder or under the
Agreement.
Section 3.5 Governing Law. This Amendment shall be
governed by and construed in accordance with the laws of the State of
Delaware (without giving effect to conflicts of law principles) as to all
matters, including validity, construction, effect, performance and
remedies. Venue in any and all suits, actions and proceedings related to
the subject matter of this Amendment shall be in the state and federal
courts located in and for the State of Delaware (the "Courts"), which shall
have exclusive jurisdiction for such purpose, and the Parties hereby
irrevocably submit to the exclusive jurisdiction of such courts and
irrevocably waive the defense of an inconvenient forum to the maintenance
of any such suit, action or proceeding. Service of process may be made in
any manner recognized by such Courts. Each of the Parties hereby
irrevocably waives its right to a jury trial arising out of any dispute in
connection with this Amendment or the transactions contemplated hereby.
Section 3.6 Counterparts. 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.
Section 3.7 Interpretation. The article and section
headings contained in this Amendment are solely for the purpose of
reference, are not part of the agreement of the parties and shall not in
any way affect the meaning or construction of this Amendment. Ambiguities
and uncertainties in the wording of this Amendment shall not be construed
for or against any Party, but shall be construed in the manner that most
accurately reflects the Parties' intent as of the date of this Amendment.
Each Party acknowledges that it has been represented by counsel in
connection with the review and execution of this Amendment, and,
accordingly, there shall be no presumption that this Amendment or any
provision hereof be construed against the Party that drafted this
Amendment.
Section 3.8 Effect; Entire Agreement. Except as amended,
supplemented or otherwise modified by this Amendment, the Agreement shall
remain in full force and effect, and the valid and binding obligation of
each Party. The Agreement, as amended hereby (including the Schedules and
Exhibits thereto), together with the Confidentiality Agreement, the DP&L
Related Purchase Agreement, as amended, and the ACE Related Purchase
Agreements, as amended, embody the entire agreement and understanding of
the Parties hereto and thereto in respect of the transactions contemplated
by the Agreement, as amended hereby, the Additional Agreements, DP&L
Related Purchase Agreement, as amended, and the ACE Related Purchase
Agreements, as amended, and supersedes all prior agreements and
understandings between or among the Parties with respect to the
transactions contemplated hereby or thereby.
[Signature Page Follows]
IN WITNESS WHEREOF, the Parties have caused this
Amendment to be duly executed and delivered as of the date and year first
written above.
ATLANTIC CITY ELECTRIC COMPANY
By: /s/ Philip S. Reese
--------------------------------------
Philip S. Reese
Vice President and Treasurer
NRG ENERGY, INC.
By: /s/ David H. Peterson
--------------------------------------
David H. Peterson
Chairman, President and CEO
(ACE JOINTLY OWNED STATIONS)
EXHBIT 99.1
[GRAPHIC OMITTED]
June 25 2001
Contacts:Ted Caddell, Public Affairs; 302-283-5811
Bob Marshall, Investor Relations; 302-429-3164
CONECTIV ANNOUNCES SALE OF BASE-LOAD PLANTS TO NRG
New Mid-Merit Generation and Power Purchase
Agreements Ensure Reliability
WILMINGTON, Del. - Conectiv (NYSE:CIV) today announced its Delmarva Power &
Light Company subsidiary has completed the sale of approximately 1,081
megawatts of baseload coal-fired generation to subsidiaries of NRG Energy.
As part of its strategic focus on the 'mid-merit' generation market in the
mid-Atlantic region, Conectiv will retain approximately 2,000 megawatts of
mid-merit and peaking generation in the PJM power pool. The company is
driving forward to establish a market leading position in the mid-merit
segment, with the goal of adding a total of 4,000 megawatts of mid-merit
generation by 2004. Conectiv's mid-merit power plants come on line quickly
and produce electricity when demand is high, and can be stopped quickly
when demand drops.
Delmarva Power entered into both short- and long-term purchase power
contracts with NRG to provide energy and capacity for the Delmarva
Peninsula.
In addition to the retention of 2,000 megawatts of mid-merit generation,
the company is currently well into a $300 million, 550 megawatt expansion
of the Hay Road plant. The first combustion turbine at that plant, which
will produce 116 megawatts, began commercial operation in early June.
"Our decision to concentrate on mid-merit plants, such as the Hay Road
expansion project, coupled with the power purchase arrangements we have put
in place all mean one thing for Conectiv customers - a steady and reliable
supply of electricity into the future," according to Conectiv President Tom
Shaw.
The sales announced today cover the Indian River Power Plant near
Millsboro, Del.; the Vienna Power Plant near Vienna, Md., and minority
interests in the Keystone and Conemaugh coal-fired plants in Pennsylvania.
Excluding inventory adjustments and other items, Conectiv received
approximately $630 million in cash for the plants. An after-tax gain of
approximately $170 million to $175 million is expected to be recognized in
Conectiv's second quarter 2001 earnings as a result of the sales. Proceeds
are expected to be used to repay debt and to fund Conectiv's mid-merit
construction program.
(more)
As previously announced, Delmarva Power and Atlantic City Electric, also a
Conectiv subsidiary, entered into purchase and sale agreements with NRG in
January 2000 for the sale of approximately 1,900 megawatts of generation
assets, including the 1,081 sold to NRG. Consummation of the sales is
conditioned upon, among other things, receipt of required regulatory
approvals. Because the parties have not yet received the required approval
of the New Jersey Board of Public Utilities for Atlantic City Electric's
generation assets, those sales were not consummated simultaneously with the
Delmarva Power assets, as originally contemplated by Conectiv and NRG.
Subject to receipt of the New Jersey Board of Public Utilities approval,
Conectiv expects the sale of certain Atlantic City Electric assets to take
place during 2001.
In connection with the sale of the Delmarva Power assets, Conectiv and NRG
amended the purchase and agreements, among other reasons, to permit
separate closings of the sales of the Delmarva Power and Atlantic City
Electric assets.
#####
Conectiv, a Fortune 500 company headquartered in Wilmington, DE, is focused
on two core energy businesses. Conectiv Power Delivery provides safe,
reliable, and affordable energy service to more than one million customers
in New Jersey, Delaware, Maryland, and Virginia. Conectiv Energy uses a
sophisticated power-trading unit to optimize the value of a growing
portfolio of mid-merit power plants that can start and stop quickly in
response to changes in the demand for power within the PJM
[Pennsylvania-New Jersey-Maryland] power pool.
FORWARD-LOOKING STATEMENTS
The Private Securities Litigation Reform Act of 1995 (the
"Litigation Reform Act") provides a "safe harbor" for forward-looking
statements to encourage such disclosures without the threat of litigation,
provided those statements are identified as forward-looking and are
accompanied by meaningful, cautionary statements identifying important
factors that could cause the actual results to differ materially from those
projected in the statement. Forward-looking statements have been made in
this Press Release. Such statements are based on beliefs of Conectiv's (the
"Company's") management ("Management") as well as assumptions made by and
information currently available to Management. When used herein, the words
"will," "anticipate," "estimate," "expect," "objective," and similar
expressions are intended to identify forward-looking statements. In
addition to any assumptions and other factors referred to specifically in
connection with such forward-looking statements, factors that could cause
actual results to differ materially from those contemplated in any
forward-looking statements include, among others, the following:
deregulation of energy supply and telecommunications; the unbundling of
delivery services; an increasingly competitive energy and
telecommunications marketplace; results of any asset dispositions; sales
retention and growth; federal and state regulatory actions; future
litigation results; cost of construction; operating restrictions; increased
costs and construction delays attributable to environmental regulations;
nuclear decommissioning and the availability of reprocessing and storage
facilities for spent nuclear fuel; and credit market concerns. The Company
undertakes no obligation to publicly update or revise any forward-looking
statements, whether as a result of new information, future events or
otherwise. The foregoing list of factors pursuant to the Litigation Reform
Act should not be construed as exhaustive or as an admission regarding the
adequacy of disclosures made prior to the effective date of the Litigation
Reform Act.
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