COMMITMENT LETTER
Exhibit 4
This COMMITMENT LETTER (this “Agreement”), dated as of October 25, 2007, by and among MIP
Padua Holdings, GP, Macquarie Specialised Asset Management Limited as responsible entity for
Macquarie FSS Infrastructure Trust, Padua MG Holdings Inc., CPP Investment Board (USRE II) Inc.,
Padua Investment Trust, PIP2PX (Pad) Ltd. and PIP2GV (Pad) Ltd. (collectively, the “Investors”), on
the one hand, and Padua Holdings LLC, a Delaware limited liability company (“Parent”), and Padua
Intermediate Holdings Inc., a Washington corporation (“Intermediate Holdings”), on the other hand.
RECITALS
WHEREAS, the Investors constitute all of the members of Parent, who collectively represent
100% of the ownership interests in Parent;
WHEREAS, Parent owns 100% of the stock of Intermediate Holdings;
WHEREAS, Parent, Padua Intermediate Holdings Inc., a Washington corporation, and Puget Energy,
Inc., a Washington corporation (the “Company”), intend to enter into an Agreement and Plan of
Merger, dated as of October 25, 2007, in the form attached hereto as Exhibit A (the “Merger
Agreement”), pursuant to which Parent is agreeing to acquire the Company through the merger (the
“Merger”) of an indirect wholly-owned subsidiary of Parent (“Merger Sub”) with and into the Company
whereby the Company will become an indirect wholly-owned subsidiary of Parent (the “Surviving
Corporation”); and
WHEREAS, MIP Padua Holdings, GP, Macquarie Specialised Asset Management Limited as responsible
entity for Macquarie FSS Infrastructure Trust, Padua MG Holdings Inc., CPP Investment Board (USRE
II) Inc., Padua Investment Trust, PIP2PX (Pad) Ltd. and PIP2GV (Pad) Ltd. (each, a “SPA Investor”)
and the Company intend to enter into a Stock Purchase Agreement, dated as of October 25, 2007, in
the form attached hereto as Exhibit B (the “Stock Purchase Agreement”), pursuant to which
the SPA Investors are agreeing to purchase from the Company newly issued shares of common stock of
the Company as set forth in the Stock Purchase Agreement (the “Purchased Shares”).
NOW, THEREFORE, in consideration of the premises and as an inducement for Parent to enter into
the Merger Agreement, the parties hereto agree as follows:
Section 1. Definitions. Capitalized terms used but not otherwise defined herein shall have the respective meanings
given to them in the Merger Agreement.
Section 2. The Commitment.
(a) Parent shall give written notice to the Investors at such time as all conditions
precedent to the obligations of the Company and Parent to consummate the Closing as set
forth in Article VIII of the Merger Agreement have been satisfied or waived by the party
entitled to waive such conditions (other than any conditions that by
their nature are to be satisfied at the Closing, but subject to the satisfaction or waiver of those conditions at
the Closing) and such notice shall include the expected date of the Closing, which shall be
no earlier than the fifteenth (15th) business day following the date of such
notice, and each Investor’s Investor Contribution Amount and Investor Loan Amount. Each
Investor, severally and not jointly, irrevocably promises and agrees that within fifteen
(15) business days after receipt of such notice it shall:
(i) make a deposit in immediately available funds:
(A) to an account in the name of the Parent at a bank designated by
Parent no later than one (1) business day prior to the Closing Date in an
amount (with respect to each Investor, such Investor’s “Investor
Contribution Amount,” which includes its Initial Contribution Amount) equal
to (I) the product of (x) the aggregate contribution amount in U.S. dollars,
to be determined by Macquarie Securities (USA) Inc. in its reasonable
discretion (the “Aggregate Contribution Amount”) and (y) such Investor’s
percentage ownership interest in Parent as set forth on Exhibit C
attached hereto (with respect to each Investor, such Investor’s “Investor
Equity Percentage”) minus (II) any cash amounts previously contributed by
such Investor to Parent and/or Escrow Agent (as defined in Section 2(c)
below) and any amounts drawn under Letter(s) of Credit (as defined in
Section 2(b) below) issued to Parent and/or Escrow Agent, in each case
pursuant to Section 2(b) below; plus
(B) to an account in the name of Intermediate Holdings at a bank
designated by Intermediate Holdings no later than one (1) business day prior
to the Closing Date in an amount (with respect to each Investor, such
Investor’s “Investor Loan Amount”) equal to (I) the product of (x) the
aggregate loan amount in U.S. dollars, to be determined by Macquarie
Securities (USA) Inc. in its reasonable discretion (the “Aggregate Loan
Amount”) and (y) such Investor’s percentage loan amount to Intermediate
Holdings as set forth on Exhibit C attached hereto; and
(ii) upon such deposit, provide written notice to Parent reaffirming its
ability and willingness to fund its Investor Contribution Amount and its Investor
Loan Amount at Closing and evidence of its deposits.
At Closing, each Investor, severally and not jointly, shall (i) contribute to Parent its
Investor Contribution Amount (in cash and/or Purchased Shares, as discussed below), and such
amounts shall be treated in full as an equity contribution to Parent, with each Investor’s
ownership interest in Parent represented by certificated limited liability company interests
(“Class A Interests”) and Investors being issued one Class A Interest for each US $20,000
contributed in cash, and a proportionate fraction of a Unit for
amounts less than US $20,000 and (ii) loan to Intermediate Holdings its Investor Loan Amount
and such Investor Loan Amount shall be treated in full as a loan to Intermediate Holdings,
with each Investor’s loan to Intermediate Holdings represented by a promissory note in a
form to be mutually agreed upon by the parties prior to the Closing.
Each SPA Investor shall contribute, or cause to be contributed, the Purchased Shares to Parent in satisfaction
of a portion of its Investor Contribution Amount equal to the number of such Investor’s
Purchased Shares multiplied by the Merger Consideration. The contribution of the Purchased
Shares to Parent, taken together with the contribution of each Investor of the cash portion
of the Investor Contribution Amount, is intended to be treated as a transaction described in
Section 351 of the Internal Revenue Code of 1986, as amended.
(b) Each Investor, severally and not jointly, irrevocably promises and agrees that it
shall reimburse Parent for its portion of certain expenses and fund its portion of the
Default Amount (as defined below) and, in furtherance thereof, shall make or cause to be
made an advance payment to Parent, as of the date hereof, in immediately available funds in
an amount (with respect to each Investor, such Investor’s “Initial Contribution Amount”)
equal to the sum of (I) the product of (A) US $130 million (the “Default Amount”) multiplied
by (B) such Investor’s Investor Equity Percentage (for each Investor, the “Investor Default
Amount”) plus (II) the product of (X) US $37.5 million (the “Expense Amount”) multiplied by
(Y) such Investor’s Investor Equity Percentage. An amount equal to $1,000 multiplied by
such Investor’s Investor Equity Percentage shall be deemed an equity contribution to Parent
and the balance of such cash amounts shall be treated, until the Closing, as a pro-rata
advancement of Parent expenses. At each Investor’s sole discretion, in lieu of all or a
portion of its Initial Contribution Amount, such Investor may provide for the issuance of a
letter or letters of credit in the form of Exhibit D (a “Letter of Credit”) of all
or such portion of its Initial Contribution Amount that is reasonably acceptable to Parent
from a U.S., Canadian or Australian bank or U.S. branch of a non-U.S. bank, which bank shall
have a minimum rating of A- from Standard & Poor’s Ratings Services and A1 from Xxxxx’x
Investors Service, Inc. The Letter(s) of Credit must provide unconditionally for payment
upon demand from time to time and (i) must be in favor of Parent in an amount up to the
Expense Amount and (ii) must be in favor of Escrow Agent in an amount up to the Default
Amount in accordance with Section 2(c). Any Investor that so provides a Letter of Credit
shall be entitled upon notice to Parent, Escrow Agent and the other Investors at any time to
replace such Letter of Credit with other Letter(s) of Credit or a cash deposit to an account
designated by Parent (in the case of its portion of the Expense Amount) or to the Escrow
Account (in the case of its portion of the Default Amount). Any Investor that provides cash
for its Initial Contribution Amount shall be entitled upon notice to Parent, Escrow Agent
and the other Investors at any time to replace such cash deposit with a Letter of Credit in
favor of Parent (in the case of its portion of the Expense Amount) or a Letter of Credit in
favor of Escrow Agent (in the case of its portion of the Default Amount). No Investor will
be entitled to replace such cash deposit or letter of credit with cash or letter of credit
of a lesser amount, unless and to the extent that such Investor has funded Parent or Escrow
Agent in amounts in excess of its Expense Amount or Default Amount, as applicable, in which
case such Investor will be entitled to the return of cash or reduction in letter of credit,
as necessary, to return to the Investor, or reduce its letter of credit, by the excess
amount that was funded. Following termination of the Merger Agreement, if the Escrow
Agent shall release any amounts in the Escrow Account (as defined in Section 2(c) below) to
Parent, Parent shall, subject to any applicable provisions of the Delaware Limited Liability
Company Act (the “LLC Act”), promptly return to the Investors their
respective Initial Contribution Amounts, including any after-tax interest or other income earned by Parent in
respect thereof, and/or consent to the termination of any Letter(s) of Credit issued in
respect thereof. Upon Closing, any after-tax interest or other income earned by Parent in
respect of an Investor’s Initial Contribution Amount shall be returned to the Investor net
of tax within forty-five (45) days after the Closing. If the Merger Agreement is not
entered into with the Company on or before November 9, 2007, any amounts deposited in the
Escrow Account shall be returned to the Investor who deposited such amounts, and any amounts
deposited in Parent’s account in respect of the Expense Amount shall be returned to the
Investor who deposited such amounts, less such Investor’s pro rata share of the fees and
expenses of The Bank of New York, and any Letter(s) of Credit shall be terminated after the
pro rata share of the fees and expenses of The Bank of New York have been drawn upon.
(c) Parent shall cause immediately prior to the execution of the Merger Agreement a
combination of an amount of cash or undrawn Letters of Credit equal to the Default Amount to
be deposited into an escrow account (the “Escrow Account”)
at The Bank of New York (“Escrow
Agent”) pursuant to an escrow agreement in the form attached hereto as Exhibit E
(the “Escrow Agreement”). Any Letters of Credit so deposited must provide unconditionally
for payment upon demand from time to time by Escrow Agent in accordance with the Escrow
Agreement.
(d) If the Company has a claim against Parent and/or Merger Sub under the Merger
Agreement (a “Claim”), upon receipt of notice of any such Claim from the Company or upon
Parent’s knowledge that the Company is actively pursuing or threatening to pursue any such
Claim, Parent shall give prompt notice of such Claim to each of the Investors. If and to
the extent (I) a court of competent jurisdiction (or other tribunal having jurisdiction)
shall have rendered a final, non-appealable judgment in respect of the Company’s Claim or
(II) Parent otherwise agrees in writing (which shall require the unanimous approval of the
managers of the board of Parent) that an amount is due in respect of the Company’s Claim
(each of (I) or (II), a “Liability”), Parent shall give written notice to the Investors that
a Liability has been incurred and the amount of such Liability, and Parent shall promptly
cause to be paid to the Company the amount of such Liability from amounts available in the
Escrow Account. Each of Parent and the Investors expressly acknowledge and agree that no
payment shall be made until a Liability has been established in accordance with this Section 2(d).
(e) No Investor shall have any obligation to make the contribution to Parent or the
loan to Intermediate Holdings required under
Section 2(a) of this Agreement (i) unless and until all conditions precedent to the obligations of the Company and Parent to consummate the Closing as set forth in Article VIII of the Merger Agreement have been satisfied or waived by the party entitled to waive such conditions (other than any conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or waiver of those conditions at the Closing); (ii) if Parent or Intermediate Holdings has materially breached its representations and warranties hereunder (which material breach is not curable within thirty (30) days from the day Parent is notified by any Investor of such breach); or (iii) to the extent the making of such contribution would cause such Investor’s aggregate contributions and loans under Section 2(a) and Section
Section 2(a) of this Agreement (i) unless and until all conditions precedent to the obligations of the Company and Parent to consummate the Closing as set forth in Article VIII of the Merger Agreement have been satisfied or waived by the party entitled to waive such conditions (other than any conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or waiver of those conditions at the Closing); (ii) if Parent or Intermediate Holdings has materially breached its representations and warranties hereunder (which material breach is not curable within thirty (30) days from the day Parent is notified by any Investor of such breach); or (iii) to the extent the making of such contribution would cause such Investor’s aggregate contributions and loans under Section 2(a) and Section
2(b), as applicable, to exceed its Investor Commitment as set forth on Exhibit C (the
“Investor Commitment Amount”), but only with respect to such portion that is in excess of
such Investor’s Investor Commitment Amount. At Closing, Parent agrees that it will pay the
amount required in respect of the Merger Consideration pursuant to the Merger Agreement only
if it has funds to make such payment in its entirety and will not make any partial payment
in respect thereof. Except as provided in Section 2(b) above, if any Investor (A)
contributes its Investor Contribution Amount (or any portion of such amount) to Parent prior
to the Closing or (b) loans its Investor Loan amount (or any portion of such amount) to or
for the benefit of Intermediate Holdings prior to the Closing, Parent or Intermediate
Holdings, as applicable, shall hold such amounts in trust for such Investor until
immediately before the Closing and, if the Closing does not occur, Parent shall promptly
return to such Investor, subject to the LLC Act, any amounts contributed and Intermediate
Holdings shall promptly return to such Investor, subject to the Washington Business
Corporation Act, any amounts loaned.
(f) Each SPA Investor, severally and not jointly, agrees to indemnify and hold harmless
Parent and Intermediate Holdings from and against all losses, claims, damages and expenses
Parent or Intermediate Holdings may suffer or incur as a result of a SPA Investor’s breach
of its obligations under the Stock Purchase Agreement; provided, however, that in no event
shall an SPA Investor’s liability pursuant to this Section 2(f) exceed its Investor
Commitment Amount.
(g) Each of Parent, Intermediate Holdings and the Investors expressly acknowledges and
agrees that (A) no liability pursuant to the Merger Agreement or this Agreement shall
include any damages based on any theory of liability for any special, indirect,
consequential (including lost profits) or punitive damages; (B) in no event shall the
liability of Parent, Intermediate Holdings, Merger Sub or any Investor arising out of or
relating to any material and willful breaches of the Merger Agreement and this Agreement
exceed, in aggregate, the Default Amount, and (C) under no circumstances shall any Investor
or advisor to Parent, Intermediate Holdings or Merger Sub have any liability arising out of
or relating to any breaches in excess of the Default Amount.
(h) If the Company gives notice of a Claim to Parent, Parent shall not return any
Investor Default Amounts to Investors until such time as there are no remaining Claims.
(i) Except as otherwise provided in the Limited Liability Company Agreement of Parent
(the “LLC Agreement”), no Investor shall under any circumstances be required to (i)
contribute to Parent any amount in excess of its Investor Contribution Amount or (ii) loan
to Intermediate Holdings any amount in excess of its Investor Loan Amount.
Section 3. Representations and Warranties.
(a) As of the date hereof and as of the Closing, each Investor,
severally but not jointly, represents and warrants to Parent and Intermediate Holdings
as to itself as follows:
(i) Such Investor is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization and has full corporate or
other power and authority to enter into this Agreement and to perform its
obligations hereunder.
(ii) The execution and delivery of this Agreement by such Investor, and the
performance of its obligations hereunder, have been duly authorized by all necessary
corporate or other action on the part of such Investor.
(iii) Such Investor has duly executed and delivered this Agreement. Assuming
due authorization, execution and delivery of this Agreement by Parent and the other
Investors, this Agreement constitutes the valid and binding obligation of such
Investor, enforceable in accordance with its terms, except as such enforceability
may be limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws of general applicability affecting the enforcement of creditors’ rights
and the application of general principles of equity.
(iv) All consents, authorizations and other approvals of any governmental
authority which are necessary for the execution and delivery of this Agreement by
such Investor and the performance by it of its obligations hereunder have been
obtained and are in full force and effect, final and not subject to any appeal,
except for any consents, authorizations and other approvals contemplated by the
Merger Agreement and the Stock Purchase Agreement.
(v) The execution, delivery and performance by such Investor of this Agreement
will not conflict with or result in a violation or default under any contract,
agreement, or law, statute, regulation, rule or order of any court or regulatory
authority binding upon such Investor or any of its respective affiliates.
(vi) To the extent an Investor has entered into this Agreement in its capacity
as a trustee or responsible entity for another entity (such other entity, the
“Investor’s Trust”), such Investor (a) has full rights to indemnification or
reimbursement from assets of such Investor’s Trust in connection with the
performance of all of its obligations under this Agreement, including the payment or
contribution of all funds required to be paid or contributed by such Investor
hereunder, (b) no approval or consent by any governmental authority, third party or
any other entity is necessary in order for such Investor to exercise its rights to
indemnification or reimbursement from the assets of such Investor’s Trust in
connection with the performance of its obligations under this Agreement,
including the payment or contribution of all funds required to be paid or
contributed by such Investor hereunder, and such Investor has not, and shall not,
take or omit to take any action that would eliminate or limit such rights to
indemnification or reimbursement, and (c) such Investor’s Trust or the beneficiaries
of such Investor’s Trust has sufficient assets from which to satisfy all of such
Investor’s obligations under this Agreement, including the payment or
contribution of all funds required to be paid or contributed by such Investor hereunder.
(b) As of the date hereof and as of the Closing, each of Parent and Intermediate
Holdings represents and warrants to each Investor as follows:
(i) Parent is duly organized, validly existing and in good standing under the
laws of Delaware and Intermediate Holdings is duly organized and validly existing
under the laws of Washington. Each of Parent and Intermediate Holdings has full
corporate power or limited liability company power and authority to enter into this
Agreement and to perform its obligations hereunder. Each of Parent and Intermediate
Holdings has provided each Investor a true, correct and complete copy of its
certificate of formation or articles of incorporation, as applicable, which is in
full force and effect.
(ii) The execution and delivery by each of Parent and Intermediate Holdings of
this Agreement, and the performance of its obligations hereunder, have been duly
authorized by all necessary limited liability or corporate company action on the
part of Parent and Intermediate Holdings, as applicable.
(iii) Each of Parent and Intermediate Holdings has duly executed and delivered
this Agreement. Assuming due authorization, execution and delivery of this
Agreement by the Investors, this Agreement constitutes the valid and binding
obligation of Parent and Intermediate Holdings, enforceable in accordance with its
terms, except as such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws of general applicability affecting
the enforcement of creditors’ rights and the application of general principles of
equity.
(iv) All consents, authorizations and other approvals of any governmental
authority which are necessary for the execution and delivery of this Agreement by
each of Parent and Intermediate Holdings and the performance by them of their
obligations hereunder have been obtained and are in full force and effect, final and
not subject to any appeal, except for any consents, authorizations and other
approvals contemplated by the Merger Agreement and the Stock Purchase Agreement.
(v) The execution, delivery and performance of this Agreement by each of Parent
and Intermediate Holdings will not conflict with or result in a violation or default
under any contract, agreement, or law, statute, regulation, rule
or order of any court or regulatory authority binding upon Parent, Intermediate
Holdings or any of their respective affiliates.
(vi) Parent is a newly organized Delaware limited liability company and
Intermediate Holdings is a newly organized Washington corporation, each of which has
conducted no business except as is incident to the transactions
contemplated by this Agreement, the Merger Agreement and the Stock Purchase Agreement.
Section 4. Restriction on Use. Each of Parent and Intermediate Holdings shall segregate from its general funds any
contributions or loans made by the Investors hereunder and, to the fullest extent permitted by law
shall use such funds for the purpose, and only for the purpose, of Parent and Merger Sub to satisfy
their respective obligations under the Merger Agreement, pay any related fees and expenses
associated with the transactions contemplated by the Merger Agreement and for capital expenditures
of the Company approved by Parent in its reasonable discretion.
Section 5. Termination. The obligations of the Investors under this Agreement shall terminate upon the earlier to
occur of:
(a) thirty days after notice of termination of the Merger Agreement is given pursuant
to Article IX thereof, unless prior to the close of business on the thirtieth day after such
notice, the Investors receive written notice from Parent or the Company that the Company is
actively pursuing a Claim, in which case this Agreement shall terminate upon the settlement
or other determination of the last remaining Claim in accordance with Section 2(b) hereof;
provided that the obligation of the Investors under Section 2(a) of this Agreement
shall terminate upon the termination of the Merger Agreement; or
(b) the occurrence of the Closing under the Merger Agreement.
Notwithstanding the foregoing, this Agreement shall terminate if the Merger Agreement is not
executed and delivered in the form attached hereto as Exhibit A or in such other form
acceptable to all Investors by the parties thereto on or before November 9, 2007.
Section 6. No Recourse. Notwithstanding anything that may be expressed or implied in this Agreement, each of the
Parent, Intermediate Holdings and each Investor covenants, agrees and acknowledges that no Person
other than Parent, Intermediate Holdings, the Investors and any assignee of any of the Investors
shall have any obligations hereunder and Parent shall ensure in the Management Agreement and the
Stock Purchase Agreement that the Company shall so covenant, agree and acknowledge. No recourse
hereunder or under any documents or instruments delivered in connection herewith or in connection
with this Agreement, the Merger Agreement or the Stock Purchase Agreement shall be had against any
former, current or future director, officer, trustee, employee, agent, limited partner, manager,
member, stockholder, affiliate or assignee of the
Investors, Parent, Intermediate Holdings or Merger Sub or any former, current or future
director, officer, trustee, employee, agent, limited partner, manager, member, stockholder,
affiliate or assignee of any of the foregoing, whether by the enforcement of any assessment or by
any legal or equitable proceeding, or by virtue of any statute, regulation or other applicable law,
it being expressly agreed and acknowledged that no personal liability whatsoever shall attach to,
be imposed on or otherwise be incurred by, any former, current or future director, officer,
trustee, employee, agent, limited partner, manager, member, stockholder, affiliate or assignee of
the undersigned or any former, current or future director, officer, trustee, employee, agent,
limited partner, manager, member, stockholder, affiliate or assignee of any of the foregoing, as
such, for any obligation of the undersigned under this Agreement, the Merger
Agreement or the Stock Purchase Agreement or for any claim based on, in respect of or by reason of such obligation or its
creation. In addition, each of Parent and each Investor covenants, agrees and acknowledges the
terms of liability with respect to Trustees and Responsible Entities attached hereto as Exhibit
G.
Section 7. Miscellaneous.
(a) For purposes of this Agreement, “affiliate” means: (i) with respect to any Person
that is a Fund or holds shares for a Fund, any other Person or Fund or subsidiary of a Fund
(other than a Fund which is or is proposed to be listed or quoted on an investment exchange
with a purpose of effectively achieving an indirect listing or quotation of equity in
Parent) which is advised by, or the business, operations or assets of which are managed
(whether solely or jointly with others) from time to time by or whose parent is managed by,
the manager or adviser of the Fund (or a Person that, directly or indirectly through one or
more intermediaries, Controls, is Controlled by, or is under common Control with, that
manager or adviser); provided, however, (X) the term “adviser” shall mean an
entity which provides a Person with advice in relation to the management of investments of
that Person, which, in the case of a Fund (other than in relation to actually making
decisions to implement such advice), is substantially the same as the services which would
be provided by a manager of the Fund and such adviser effectively forms part of the
structure of the Fund, except that Macquarie Bank Limited and its affiliates will not be
treated as an adviser of a Fund solely as a result of any services provided or agreed to be
provided by Macquarie Bank Limited or any of its affiliates to the Fund under an agreement
pursuant to which those services are to be provided solely in relation to an investment by
the Fund in Parent; (Y) the term “manager” with respect to any Fund shall mean any general
partner, trustee, responsible entity, nominee, manager, adviser or other entity performing a
similar function with respect to such Fund; and (Z) no Person which is or holds shares for a
complying superannuation fund for the purposes of the Australian Superannuation Industry
(Supervision) Xxx 0000 shall deemed to be an affiliate of any Person which is or holds
shares for any other such Fund by reason of this definition; and (ii) with respect to any
Person that is not a Fund and does not hold shares for a Fund, any other Person that,
directly or indirectly through one or more intermediaries, Controls, is Controlled by, or is
under common Control with, such Person. A “Fund” means any unit trust, investment trust,
investment company, limited partnership, general partnership or other collective
investment scheme, pension fund, insurance company or any body corporate or other
entity, in each case, the business, operations or assets of which are managed professionally
for investment purpose. “Control” means the possession, direct or indirect, of the power to
direct or cause the direction of the management and policies of a Person, whether through
the ownership of securities, by contract or otherwise, which, for the avoidance of doubt,
shall include through a Person’s capacity as general partner, trustee, “Responsible Entity,”
nominee, manager or adviser or otherwise.
(b) This Agreement shall be binding upon, shall inure to the benefit of, and shall be
enforceable by, the parties hereto and their respective successors and permitted assigns.
Each Investor may, at its election and without the consent of any other Investor, Parent or
Intermediate Holdings, assign its rights and obligations under this Agreement to
any affiliate of such Investor so long as any such affiliate has or acquires at the time of such
assignment available funds or committed capital that equals or exceeds such Investor’s
Investor Commitment Amount; provided that, without the written consent of each
Investor, no such assignment shall relieve such Investor from any obligation under this
Agreement; and provided further that, without the written consent of each
Investor, no assignment shall adversely affect or delay or result in a need to re-file or
seek any additional Company Required Statutory Approval or Parent Required Statutory
Approval or otherwise have adverse tax effects on Parent, Intermediate Holdings or any
Investor. Notwithstanding the foregoing, (i) PIP2PX (Pad) Ltd. and PIP2GV (Pad) Ltd. shall
each be entitled to assign all or a portion of its rights and obligations (including the
obligation to fund all or a part of its Investor Commitment Amount) under this Agreement to
(a) the Province of Alberta or a person directly or indirectly controlling, controlled by or
under common control with the Province of Alberta and (b) to any public sector pension plan
on behalf of which Alberta Investment Management currently makes investments (provided that
(x) a person directly or indirectly or under common control with the Province of Alberta
shall continue to manage all rights and obligations hereunder to be transferred to such
transferee and (y) such transfer does not have an adverse effect (economic or otherwise) on
either the equity interests in Parent or the loans to Intermediate Holdings held by the
other Investors), (ii) CPP Investment Board (USRE II) Inc. shall be entitled to assign all
or a portion of its rights and obligations (including the obligation to fund all or a part
of its Investment Commitment Amount) under this Agreement to any other subsidiary of Canada
Pension Plan Investment Board or any successor thereto by statute or regulation, (provided
that (x) a person directly or indirectly or under common control with the Canada Pension
Plan Investment Board shall continue to manage all rights and obligations hereunder to be
transferred to such transferee; and (y) such transfer does not have an adverse effect
(economic or otherwise) on the equity interest in Parent held by the other Investors, (iii)
Padua Investment Trust shall be entitled to assign all or a portion of its rights and
obligations (including the obligation to fund all or a part of its Investment Commitment
Amount) under this Agreement to (a) a person directly or indirectly controlled by British
Columbia Investment Management Corporation (provided that (x) British Columbia Investment
Management Corporation shall continue to manage all rights and obligations hereunder to be
transferred to such transferee; and (y) such transfer does not have an adverse effect
(economic or otherwise) on the equity interest in Parent held by the other Investors, and
(iv) Padua MG Holdings Inc. shall be entitled to syndicate all or a portion of its rights
and obligations (including the obligation to fund all or a part of its Investor Commitment Amount) under this
Agreement for the period ending on the date that is the two-year anniversary of the Closing
Date, provided that in the case of clause (i), (ii), (iii) or (iv) the assignee
executes a commitment agreement in substantially the same form as this Agreement.
Notwithstanding anything in this Section 7(b), Parent or Intermediate Holdings may, at their
election and without consent of any Investor, make a security assignment of its rights under
this Agreement to any lender providing financing to Parent, Intermediate Holdings or their
permitted assigns in connection with the Merger Agreement (it being understood that any
rights under this Agreement shall only be exercised by Parent, Intermediate Holdings or
their permitted assigns and that no assignee pursuant to any security assignment shall be
entitled to directly exercise any rights under this Agreement;
provided that no Investor shall be obliged to waive any rights or defenses it may have at law, in equity or under the
terms of this Agreement and shall not be obliged to make payment of any amount otherwise
payable by an Investor to any person other than Parent or Intermediate Holdings, as
applicable; and provided further that Parent may not make any security assignment of the
Purchased Shares.
(c) This Agreement, together with the LLC Agreement and the agreements referenced
herein and therein, constitutes the entire agreement, and supersedes all prior agreements,
understandings, negotiations and statements, both written and oral, among the parties or any
of their affiliates with respect to the subject matter contained herein except for such
other agreements as are referenced herein which shall continue in full force and effect in
accordance with their terms.
(d) All notices and other communications required or permitted by this Agreement or by
law to be served upon or given to a party hereto by any party hereto shall be addressed (i)
if to Parent, as provided in the Merger Agreement, or (ii) if to the Investors, as provided
in Exhibit F.
(e) This Agreement may not be amended or otherwise modified or terminated except by a
written agreement signed by all parties hereto.
(f) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ANY CHOICE OR CONFLICT OF LAWS PROVISION OR
RULE THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN NEW YORK.
(g) EACH PARTY HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE PERSONAL JURISDICTION OF ANY
STATE OR FEDERAL COURT LOCATED IN THE CITY OF NEW YORK OVER ANY SUIT, ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO OR CONCERNING THIS AGREEMENT. In addition, each party (i)
agrees that it will not attempt to deny or defeat such personal jurisdiction by motion or
other request for leave from such court, (ii) waives any claim of improper venue or any
claim that the courts of the State of New York are an inconvenient forum for any action,
suit or proceeding between any of the parties hereto arising out of this Agreement or any
transaction contemplated hereby, (iii) agrees that it will not bring any action relating to this Agreement in any court other
than the courts of the State of New York, (iv) agrees that the forum designated by this
Section 7(g) has a reasonable relation to this Agreement and to the transactions
contemplated by this Agreement, and (v) irrevocably appoints CT Corporation System, 000 0xx
Xxxxxx, Xxx Xxxx, XX 00000 as its agent for service of process in New York in connection
with any such action, suit or proceeding and consents to such service of process being made
through such agent, except that this clause (v) shall not apply to PIP2PX (Pad) Ltd. and
PIP2GV (Pad) Ltd.
(h) EACH PARTY HERETO ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE
UNDER THIS AGREEMENT IS
LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE
EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE
TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
(i) In the event that any provision hereof would, under applicable law, be invalid or
unenforceable in any respect, such provision shall be construed by modifying or limiting it
so as to be valid and enforceable to the maximum extent compatible with, and possible under,
applicable law. The provisions hereof are severable, and in the event any provision hereof
should be held invalid or unenforceable in any respect, it shall not invalidate, render
unenforceable or otherwise affect any other provision hereof.
(j) The terms, conditions, covenants, representations and warranties hereof may be
waived only by a written instrument executed by the party waiving compliance. The failure
of a party at any time or from time to time to require performance of any provisions hereof
shall in no manner affect its rights at a later time to enforce the same. No waiver by a
party of any condition or any breach of any term, covenant, representation or warranty
contained in this Agreement in any one or more instances shall be deemed to be, or be
construed as, a further or continuing waiver of any such condition or breach of any other
term, covenant, representation or warranty.
(k) No person other than the parties hereto, or their successors or permitted assigns,
shall have any rights hereunder.
(l) This Agreement may be signed by facsimile or by emailing a pdf file and may be
signed in counterparts, each of which shall be deemed an original and all of which together
shall constitute one and the same Agreement. This Agreement shall be effective only when
signed by Parent and Investors representing 100% of the Aggregate Contribution Amount.
[Signatures Follow On Next Page]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year
first above written.
PARENT: | ||||
PADUA HOLDINGS LLC | ||||
By:
|
/s/ Xxxxxxxxxxx Xxxxxx | |||
Name:
|
Xxxxxxxxxxx Xxxxxx | |||
Its:
|
Authorized Person | |||
INTERMEDIATE HOLDINGS: | ||||
PADUA INTERMEDIATE HOLDINGS INC. | ||||
By:
|
/s/ Xxxxxxxxxxx Xxxxxx | |||
Name:
|
Xxxxxxxxxxx Xxxxxx | |||
Its:
|
Authorized Person |
INVESTORS: | ||||
MIP PADUA HOLDINGS, GP | ||||
By:
|
/s/ Xxxx Xxxx | |||
Name:
|
Xxxx Xxxx | |||
Title:
|
Treasurer | |||
By:
|
/s/ Xxxxxx Xxxxxx | |||
Name:
|
Xxxxxx Xxxxxx | |||
Title:
|
Secretary | |||
PADUA MG HOLDINGS INC. | ||||
By:
|
/s/ Xxxxxxxxx Xxxxxx | |||
Name:
|
Xxxxxxxxx Xxxxxx | |||
Title:
|
Secretary | |||
By:
|
/s/ Xxxxxxxx Kupchak | |||
Name:
|
Xxxxxxxx Kupchak | |||
Title:
|
Director | |||
MACQUARIE FSS INFRASTRUCTURE TRUST | ||||
By: MACQUARIE SPECIALISED ASSET MANAGEMENT LIMITED in its capacity as responsible entity of MACQUARIE FSS INFRASTRUCTURE TRUST | ||||
By:
|
/s/ Xxxxx Xxxxxx | |||
Name:
|
Xxxxx Xxxxxx | |||
Title:
|
Attorney | |||
PIP2PX (PAD) LTD | ||||
By:
|
/s/ Xxxxxxx XxXxxxxx | |||
Name:
|
Xxxxxxx XxXxxxxx | |||
Title:
|
Director | |||
PIP2GV (PAD) LTD | ||||
By:
|
/s/ Xxxxxxx XxXxxxxx | |||
Name:
|
Xxxxxxx XxXxxxxx | |||
Title:
|
Director |
CPP INVESTMENT BOARD (USRE II) INC. | ||||
By:
|
/s/ Xxxx X. Xxxxxxx | |||
Name:
|
Xxxx X. Xxxxxxx | |||
Title:
|
Authorized Signatory | |||
By:
|
/s/ Xxxxxx X. Xxxxxx | |||
Name:
|
Xxxxxx X. Xxxxxx | |||
Title:
|
Authorized Signatory | |||
6860141 CANADA INC. as Trustee of PADUA INVESTMENT TRUST | ||||
By:
|
/s/ Lincoln Xxxx | |||
Name:
|
Lincoln Xxxx | |||
Title:
|
President |
EXHIBIT LIST
EXHIBIT A
|
Merger Agreement (not attached) | |
EXHIBIT B
|
Stock Purchase Agreement (not attached) | |
EXHIBIT C
|
Investor Commitments (attached) | |
EXHIBIT D
|
Form of Letter of Credit (not attached) | |
EXHIBIT E
|
Escrow Agreement (not attached) | |
EXHIBIT F
|
Notices (attached) | |
EXHIBIT G
|
Trustees and Responsible Entities (attached) | |
EXHIBIT C
INVESTOR COMMITMENTS
OWNERSHIP | LOAN | INVESTOR | ||||||||||
INVESTOR | INTEREST | PERCENTAGE | COMMITMENT | |||||||||
MIP Padua Holdings, GP |
31.8225 | % | 31.8225 | % | $ | 1,025,179,539.54 | ||||||
Macquarie Specialised Asset
Management Limited as responsible
entity for Macquarie FSS
Infrastructure
Trust |
3.7232 | % | 3.7232 | % | $ | 119,946,006.13 | ||||||
Padua MG Holdings Inc. |
15.9112 | % | 15.9112 | % | $ | 512,589,769.77 | ||||||
CPP Investment Board (USRE II) Inc. |
28.1409 | % | 28.1409 | % | $ | 906,575,101.64 | ||||||
Padua Investment Trust |
14.0704 | % | 14.0704 | % | $ | 453,287,550.82 | ||||||
PIP2PX (Pad) Ltd. |
3.9257 | % | 3.9257 | % | $ | 126,467,226.68 | ||||||
PIP2GV (Pad) Ltd. |
2.4060 | % | 2.4060 | % | $ | 77,512,171.19 |
EXHIBIT F
NOTICES
PARTY | NOTICE INFORMATION | |||
PARENT | Padua Holdings LLC | |||
Level 22, 000 Xxxx 00xx Xxxxxx | ||||
Xxx Xxxx, XX 00000 | ||||
Attn: Xxxxxxxxxxx Xxxxxx | ||||
Phone: (000) 000-0000 | ||||
Fax: (000) 000-0000 | ||||
Email: Xxxxxxxxxxx.Xxxxxx@xxxxxxxxx.xxx | ||||
MIP Padua Holdings, GP | MIP Padua Holdings, GP | |||
Level 22, 000 Xxxx 00xx Xxxxxx | ||||
Xxx Xxxx, XX 00000 | ||||
Attn: Xxxxxxxxxxx Xxxxxx | ||||
Phone: (000) 000-0000 | ||||
Fax: (000) 000-0000 | ||||
Email: Xxxxxxxxxxx.Xxxxxx@xxxxxxxxx.xxx | ||||
Macquarie Specialised | Macquarie Specialised Asset Management Limited as | |||
Asset Management | responsible entity for Macquarie FSS Infrastructure Trust | |||
Limited as | Xxx 00, 0 Xxxxxx Xxxxx | |||
responsible entity | Xxxxxx XXX 0000 | |||
for Macquarie FSS | Australia | |||
Infrastructure Trust | Attn: Xxxxx Xxxxxx; Xxxxxx Xxxx; Xxxx Xxx | |||
Phone: 00 0 0000 0000; 00 0 0000 0000; 00 0 0000 0000 | ||||
Fax: 00 0 0000 0000; 61 2 8232 4713; 61 2 8232 4713 | ||||
Email: | Xxxxx.Xxxxxx@xxxxxxxxx.xxx; | |||
Xxxxxx.Xxxx@xxxxxxxxx.xxx; and | ||||
Xxxx.Xxx@xxxxxxxxx.xxx | ||||
Padua MG Holdings Inc. | Padua MG Holding Inc. | |||
Xxxxx 00, 0000 Xxxxxx of the Americas | ||||
Xxx Xxxx, XX 00000 | ||||
Attn: Xxxxxxxx Kupchak | ||||
Phone: (000) 000-0000 | ||||
Fax: (000) 000-0000 | ||||
Email: Xxxxxxxx.Xxxxxxx@xxxxxxxxx.xxx |
PARTY | NOTICE INFORMATION | |||
CPP Investment Board | CPP Investment Board (USRE II) Inc. | |||
(USRE II) Inc. | One Queen Street East, Suite 2600 | |||
X.X. Xxx 000 | ||||
Xxxxxxx, Xxxxxxx | ||||
Xxxxxx X0X 0X0 | ||||
Attn: Xxxx Xxxxx | ||||
Phone: (000) 000-0000 | ||||
Fax: (000) 000-0000 | ||||
Email: xxxxxx@xxxxx.xx | ||||
Attn: Xxxxxx Xxxxxx | ||||
Phone: (000) 000-0000 | ||||
Fax: (000) 000-0000 | ||||
Email: xxxxxxx@xxxxx.xx | ||||
Padua Investment Trust | 6860141 CANADA INC., | |||
as trustee of Padua Investment Trust | ||||
BC Investment Management Corporation | ||||
Sawmill Point, Suite 301 -2940 Jutland Road | ||||
Victoria, British Columbia | ||||
Canada V8T 5K6 | ||||
Attn: Lincoln Xxxx | ||||
Phone: (000) 000-0000 | ||||
Fax: (000) 000-0000 | ||||
Email: xxxxxxx.xxxx@xxxxx.xxx | ||||
PIP2PX (Pad) Ltd. and | PIP2PX (Pad) Ltd. and PIP2GV (Pad) Ltd. | |||
PIP2GV (Pad) Ltd | 000 Xxxxxxx Xxxxxxxx | |||
0000-000 Xxxxxx | ||||
Xxxxxxxx, Xxxxxxx | ||||
Xxxxxx X0X 0X0 | ||||
Attn: Xxxx XxXxxxxx | ||||
Phone: (000) 000-0000 | ||||
Fax: (000) 000-0000 | ||||
Email: xxxx.xxxxxxxx@xxx.xx.xx |
EXHIBIT G
LIABILITY OF TRUSTEES AND RESPONSIBLE ENTITIES
1. If (i) a Person (“Trustee”) enters into this Agreement as trustee or responsible entity of a
trust (“its Trust”) and (ii) the Trustee notifies the Company or another party that it is acting as
trustee or responsible entity of its Trust, the following provisions shall apply in respect of the
Trustee and its Trust:
(i) | the Trustee enters into this Agreement and holds limited liability company interests only in its capacity as responsible entity or trustee (as applicable) of its Trust and in no other capacity. To the fullest extent permitted by law, liability arising under or in connection with this Agreement or the Certificate of Formation is limited to, and can be enforced against the Trustee only to, the extent to which it can be satisfied out of the assets of its Trust out of which the Trustee is actually indemnified for such liability. To the fullest extent permitted by law, this limitation of the Trustee’s liability applies despite any other provision of this Agreement or the Certificate of Formation and extends to all liabilities and obligations of the relevant party in any way connected with any representation, warranty, conduct, omission, agreement or transaction related to this Agreement or the Certificate of Formation; | |
(ii) | to the fullest extent permitted by law, no party may xxx the Trustee in any capacity other than as responsible entity or trustee (as applicable) of its Trust, including to seek the appointment of a receiver (except in relation to property of its Trust), a liquidator, an administrator, or any similar person to the Trustee or prove in any bankruptcy, insolvency, liquidation, administration or arrangement of or affecting the Trustee (except in relation to property of its Trust); | |
(iii) | the provisions of this clause 1 do not apply to any obligation or liability of the Trustee to the extent that it is not satisfied because under the agreement governing its Trust or by operation of law there is a reduction in the extent of the Trustee’s indemnification out of the assets of its Trust, as a result of the Trustee’s fraud, negligence or breach of trust; | |
(iv) | no attorney, agent, receiver or receiver and manager appointed in accordance with this Agreement has authority to act on behalf of the Trustee in a way which exposes the Trustee to any personal liability, and no act or omission of any such person will be considered fraud, negligence or breach of trust of the relevant party for the purpose of clause 1(iii); | |
(v) | the Trustee warrants to each party to this Agreement that it has the rights of indemnification referred to in clause 1(i) (the “Trustee Indemnity”); and | |
(vi) | the Trustee warrants to each party to this Agreement that it has not done and has omitted to do, and undertakes that it will not, during the term of this Agreement, do or omit to do, anything which has or would limit, affect, amend or in any manner whatsoever restrict the Trustee Indemnity. |
2. For the avoidance of doubt, Section 1 above applies to each representation and warranty given by
the Trustee in Section 3(a), including those given in respect of its Trust in Section 3(a)(vi).