XXX. 00(x)00
CONFORMED COPY
PURCHASE PRICE AGREEMENT
THIS PURCHASE PRICE AGREEMENT (the "Agreement") dated August 7, 2000 by and
among Central Xxxxxx Gas & Electric Corporation, a New York corporation
("Central Xxxxxx"), Consolidated Edison Company of New York, Inc., a New York
corporation ("Con Edison"), Niagara Mohawk Power Corporation, a New York
corporation ("Niagara Mohawk"), and Dynegy Power Corp., a Delaware corporation
("Buyer"). Central Xxxxxx, Con Edison, Niagara Mohawk and Buyer are referred to
herein individually as a "Party," and collectively as the "Parties."
W I T N E S S E T H:
WHEREAS, Central Xxxxxx, Con Edison, Niagara Mohawk and Buyer are parties
to that certain Asset Purchase and Sale Agreement, dated the date hereof (as
amended, supplemented or otherwise modified from time to time, the "Roseton
Asset Sale Agreement"), pursuant to which Buyer has agreed to purchase, and
Central Xxxxxx, Con Edison and Niagara Mohawk have agreed to sell, the Auctioned
Assets (as defined in the Roseton Asset Sale Agreement, and referred to herein
as the "Roseton Auctioned Assets");
WHEREAS, Central Xxxxxx and Buyer are parties to that certain Asset
Purchase and Sale Agreement, dated the date hereof (as amended, supplemented or
otherwise modified from time to time, the "Danskammer Asset Sale Agreement"),
pursuant to which Buyer has agreed to purchase, and Central Xxxxxx has agreed to
sell, the Auctioned Assets (as defined in the Danskammer Asset Sale Agreement,
and referred to herein as the "Danskammer Auctioned Assets");
WHEREAS, pursuant to the Roseton Asset Sale Agreement and the Danskammer
Asset Sale Agreement, the Parties have entered into this Agreement to evidence
the purchase price to be paid by Buyer for the Roseton Auctioned Assets and the
Danskammer Auctioned Assets;
NOW, THEREFORE, in consideration of the foregoing premises and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties hereby agree as follows:
1. The purchase price for the Roseton Auctioned Assets and the
Danskammer Auctioned Assets shall be Nine Hundred Three Million Dollars
($903,000,000) (the "Purchase Price"). At the Closing (as defined herein) Buyer
will pay or cause to be paid the Purchase Price in United States dollars by wire
transfer of immediately available funds to an account or accounts jointly
designated in writing by Central Xxxxxx, Con Edison and Niagara Mohawk. For
purposes of this Agreement, the term "Closing" shall mean the simultaneous
closing of the sale of the Roseton Auctioned Assets contemplated by the Roseton
Asset Sale Agreement and the sale of the Danskammer Auctioned Assets
contemplated by the Danskammer Asset Sale Agreement.
2. Neither the making nor the acceptance of this Agreement shall
enlarge, restrict or otherwise modify the terms of the Roseton Asset Sale
Agreement or the Danskammer Asset Sale Agreement or constitute a waiver or
release by the Parties of any liabilities, duties or obligations imposed upon
any of them by the terms of the Roseton Asset Sale Agreement or the Danskammer
Asset Sale Agreement, including, without limitation, all other amounts required
to be paid by Buyer at or following Closing pursuant to Article III and Section
4.2(a) of each of the Roseton Asset Purchase Agreement and the Danskammer Asset
Purchase Agreement.
3. In the event that any provision of this Agreement be construed to
conflict with a provision of the Roseton Asset Sale Agreement or the Danskammer
Asset Sale Agreement, the provision in the Roseton Asset Sale Agreement or the
Danskammer Asset Sale Agreement, as the case may be, shall be deemed
controlling.
4. This Agreement shall bind and shall inure to the benefit of the
respective Parties and their respective successors and permitted assigns.
5. Nothing in this Agreement is intended to confer upon any other person
except the Parties any rights or remedies hereunder or shall create any third
party beneficiary rights in any person.
6. This Agreement shall be governed and construed in accordance with the
laws of the State of New York (regardless of the laws that might otherwise
govern under applicable principles of conflicts of law).
7. This Agreement may be executed in counterparts, each of which shall
be deemed an original, but all of which together will constitute one and the
same instrument.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, this Purchase Price Agreement has been duly
executed and delivered by the Parties as of the date first above written.
CENTRAL XXXXXX GAS & ELECTRIC
CORPORATION
By: /s/ XXXXXX X. BRAND
-----------------------------------------
Name: Xxxxxx X. Brand
Title: Senior Vice President
CONSOLIDATED EDISON COMPANY
OF NEW YORK, INC.
By: /s/ XXXX X. XXXXXXXX
-----------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Exec. V. P. and CFO
NIAGARA MOHAWK POWER
CORPORATION
By: /s/ XXXXXX X. XXXXX
-----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior V.P. - Field Operations
DYNEGY POWER CORP.
By: /s/ X. X. XXXXXXX
-----------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Director - Project Acquisitions
STATE OF NEW YORK )
) SS:
COUNTY OF NEW YORK )
On this 4th day of August 2000, before me, the undersigned,
personally appeared Xxxxxx X. Xxxxxxx, personally known to me or proved to me on
the basis of satisfactory evidence to be the individual(s) whose name(s) is
(are) subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their capacity(ies), and that by
his/her/their signature(s) on the instrument, the individual(s), or the person
on behalf of which the individual(s) acted, executed the instrument.
/s/ XXXXXXXX XXXXXXX
--------------------
Notary
[Notary Stamp]
STATE OF NEW YORK )
) SS:
COUNTY OF NEW YORK )
On this 4th day of August 2000, before me, the undersigned,
personally appeared Xxxxxx X. Brand, personally known to me or proved to me on
the basis of satisfactory evidence to be the individual(s) whose name(s) is
(are) subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their capacity(ies), and that by
his/her/their signature(s) on the instrument, the individual(s), or the person
on behalf of which the individual(s) acted, executed the instrument.
/s/ XXXXXXXX XXXXXXX
--------------------
Notary
[Notary Stamp]
STATE OF NEW YORK )
) SS:
COUNTY OF NEW YORK )
On this 4th day of August 2000, before me, the undersigned,
personally appeared Xxxxxx X. Xxxxx, personally known to me or proved to me on
the basis of satisfactory evidence to be the individual(s) whose name(s) is
(are) subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their capacity(ies), and that by
his/her/their signature(s) on the instrument, the individual(s), or the person
on behalf of which the individual(s) acted, executed the instrument.
/s/ XXXXX X. XXX
------------------------------
Notary
[Notary Stamp]
STATE OF NEW YORK )
) SS:
COUNTY OF NEW YORK )
On this 7th day of August 2000, before me, the undersigned,
personally appeared Xxxx X. Xxxxxxxx, personally known to me or proved to me on
the basis of satisfactory evidence to be the individual whose name is subscribed
to the within instrument and acknowledged to me that she executed the same in
her capacity, and that by her signature on the instrument, the individual, or
the person on behalf of which the individual acted, executed the instrument.
/s/ XXXXXXX XXXXXXX
---------------------------------------
Notary
[Notary Stamp]
