EXHIBIT 10d
EQUITY CONTRIBUTION AGREEMENT
EQUITY CONTRIBUTION AGREEMENT (this "Agreement") dated as of October 31, 1998
by and among PP&L Global, Inc. ("Purchaser"), PP&L Resources, Inc.
("Parent"), and The Montana Power Company ("Seller").
R E C I T A L S
WHEREAS, Purchaser and Seller are parties to that certain Asset
Purchase Agreement, dated as of the date hereof (the "Purchase Agreement");
WHEREAS, Purchaser is directly wholly-owned by Parent;
NOW, THEREFORE, in consideration of the premises and as an
inducement for Seller to enter into the Purchase Agreement, the parties
hereto agree as follows:
Section 1. Definitions.Capitalized terms used herein and not otherwise
defined herein shall have the respective meanings given to them in the
Purchase Agreement.
Section 2. Equity Contribution.
(a) Seller may, in its sole discretion and without the concurrence
of Purchaser or any of its Affiliates, give written notice to be received by
Parent (i) on a date that is six (6) Business Days prior to the Closing Date
(the "Notice Date"), which notice shall certify that, as of the Notice Date,
the Montana Conditions are satisfied and that, if the Closing were to occur
on the Notice Date, Seller would be prepared to satisfy the conditions to
Closing that are solely within the control of Seller; and (ii) on a date that
is six (6) Business Days prior to the Closing Date under either of the
Portland Purchase Agreement or the Puget Purchase Agreement (as the term
"Closing Date" is defined under each of those agreements) (an "Additional
Notice Date"), which notice shall certify that Seller has been notified by
Portland and/or Puget, as applicable that, as of any such Additional Notice
Date, the Portland Conditions and/or the Puget Conditions, as applicable, are
satisfied and that, if the Closing were to occur on the Notice Date, Portland
and/or Puget, as applicable, would be prepared to satisfy the conditions to
Closing that are solely within the control of such party. Parent hereby
irrevocably promises and agrees that, upon receipt of the notice referred to
in clause (i) of the preceding sentence, Parent will make or cause to be
made, on the date of the Closing, a contribution in immediately available
funds to Purchaser in the amount of the Base Purchase Price, adjusted to take
into account additional Excluded Assets, if any, pursuant to Section 1.10 of
the Purchase Agreement and that, upon receipt of any notice referred to in
clause (ii) of the preceding sentence, Parent will make or cause to be made,
on the date of the Closing under the Portland Purchase Agreement or the Puget
Purchase Agreement, as applicable, a contribution in immediately available
Funds in the amount of the Puget Payment Amount, the Portland Payment Amount
or the Combined Payment Amount, as applicable, pursuant to Section 1.05(b) of
the Purchase Agreement (the amount required to be contributed by Parent
pursuant to each individual notice referred to in clauses (i) and (ii) of the
preceding sentence is sometimes hereinafter referred to as the "Required
Contribution Amount").
(b) If Purchaser breaches its obligation to effect the Closing as
and when required by the Purchase Agreement (or any Closing under the
Portland Purchase Agreement or the Puget Purchase Agreement as and when
required under such agreements), and, if as a result thereof, Purchaser is
the subject of a final and binding order of a court of competent jurisdiction
obligating it to pay any damages, costs, and expenses incurred by Seller (a
"Liability"), Seller may, in its sole discretion and without the concurrence
of Purchaser or any of its Affiliates, give written notice to Parent that
such Liability was incurred. Parent irrevocably promises and agrees that it
shall make or cause to be made a contribution in immediately available funds
to Purchaser within five (5) Business Days after receipt of such notice in an
amount sufficient for Purchaser to fully satisfy and discharge the Liability
up to but not to exceed the applicable Required Contribution Amount.
(c) If a court of competent jurisdiction enters a final and
binding order to the effect that Seller was not entitled to give any notice
provided for in subsection (a) or (b) hereof, then Seller shall be liable to
pay Parent, as liquidated damages and in full satisfaction of any claim of
Purchaser or any of its Affiliates arising out of such notice or order
insofar as such order relates to Seller giving such notice, an amount equal
to the documented out-of-pocket costs of Parent (including, without
limitation, Parent's cost of capital after giving effect to related income
taxes) incurred in connection with Parent's contribution (or arrangements
made to cause such contribution) to Purchaser as a result of such wrongful
notice by Seller.
(d) Notwithstanding any other provision of this Agreement to the
contrary, Parent shall have no obligation to make or cause to be made any
contribution to Purchaser under this Agreement to the extent its aggregate
contributions to Purchaser made or cause to be made as a result of a notice
given by Seller hereunder or otherwise contributed (provided such funds have
been segregated in accordance with Section 4 hereunder or are otherwise
available for payment by Purchaser of the Purchase Price under the Purchase
Agreement) equal or exceed the aggregate of the Required Contribution
Amounts.
(e) Any payments made or cause to be made by Parent directly to
Seller in satisfaction of Parent's obligations to make or cause to be made a
contribution to Purchaser hereunder shall be deemed to be on behalf of, and
to satisfy the obligations of, Purchaser to Seller under the Purchase
Agreement (to the extent of the amount paid or caused to be paid by Parent).
(f) If, prior to receipt of a notice from Seller requesting a
contribution to Purchaser, Parent makes or causes to be made a contribution
to Purchaser as contemplated herein, it shall promptly notify Seller in
writing of such contribution, which notice shall state that such contribution
has been segregated as provided in Section 4 herein.
(g) Upon written request of Seller given to Purchaser at any time
after Parent has made or caused to be made a contribution to Purchaser
contemplated herein, Purchaser agrees to return such contribution to Parent.
(h) If, following the making by Parent of a Required Contribution
Amount hereunder, the Closing in respect of which such contribution was made
fails to occur as scheduled (other than any such failure caused solely by a
breach by Purchaser of its obligation to effect such Closing), any Funds so
contributed to Purchaser may be returned to Parent; provided, that this
Agreement shall continue in effect until termination in accordance with the
provisions of Section 5 hereof.
Section 3. Representations and Warranties.
(a) Parent and Purchaser represent and warrant to Seller as
follows:
(i) Each of Parent and Purchaser is a corporation, duly
organized, validly existing and in good standing under
the laws of Commonwealth of Pennsylvania and has full
corporate power and authority to enter into this
Agreement and to perform its obligations hereunder.
(ii) The execution and delivery by each of Parent and
Purchaser of this Agreement, and the performance of its
obligations hereunder, have been duly authorized by all
necessary corporate action on the part of Parent and
Purchaser, as the case may be.
(iii) Each of Parent and Purchaser has duly executed and
delivered this Agreement. Assuming due authorization,
execution and delivery of this Agreement by Seller,
this Agreement constitutes the valid and binding
obligation of each of Parent and Purchaser, 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 by each of Parent and Purchaser
of this Agreement and the performance by it of its
obligations hereunder have been obtained and are in
full force and effect, are final and not subject to any
appeal.
(v) Execution, delivery and performance by Parent of this
Agreement will not conflict with or result in a
violation or default under any contract, agreement or
order of any court or regulatory authority binding upon
Parent or any of its Affiliates.
(b) Seller represents and warrants to Parent as follows:
(i) Seller is a corporation, duly organized, validly
existing and in good standing under the laws of the
State of Montana, and has full corporate power and
authority to enter into this Agreement and to perform
its obligations hereunder.
(ii) The execution an delivery by Seller of this Agreement,
and the performance of its obligations hereunder, have
been duly authorized by all necessary corporate action
on the part of Seller.
(iii) Seller has duly executed and delivered this Agreement.
Assuming due authorization, execution and delivery of
this Agreement by Purchaser and Parent, this Agreement
constitutes the valid and binding obligation of Seller,
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 by Seller of this Agreement and
the performance by Seller of its obligations hereunder
have been obtained and are in full force and effect,
are final and not subject to any appeal.
(v) Execution, delivery and performance by Seller of this
Agreement will not conflict with or result in a
violation or default under any contract, agreement or
order of any court or regulatory authority binding upon
Seller or any of its Affiliates.
Section 4. Restriction on Use. Purchaser shall segregate from its
general funds any contributions made or caused to be made by Parent hereunder
and shall use such funds for the purpose, and only for the purpose, of
satisfying its obligations to Seller under the Purchase Agreement. Such
contribution shall be placed in a segregated account at an independent
financial institution, the name of which account makes reference to the
restrictions contained herein.
Section 5. Termination. The obligation of Parent under this Agreement
shall terminate upon the earliest to occur of:
(a) contribution made or caused to be made by Parent to Purchaser
of an amount equal to or exceeding the aggregate of the Required Contribution
Amounts in response to a notices given by Seller hereunder or otherwise
contributed (provided such funds have been segregated in accordance with
Section 4 or are otherwise available for payment by Purchaser of the Purchase
Price under the Purchase Agreement and any necessary notice has been given
pursuant to Section 2(f));
(b) five business days after notice of termination of the Purchase
Agreement is given pursuant to Article XI thereof, unless prior to the close
of business on the fifth business day after such notice Parent receives
written notice from Purchaser or Seller that either of them in good faith
believes that the Purchase Agreement is still in full force and effect or has
been improperly terminated, and that Seller is actively pursuing a Liability
claim, in which case this Agreement shall terminate upon the settlement or
other determination of such claim in accordance with Section 2(b) hereof and
the making of the required contribution by or caused by Parent; or
(c) the occurrence of the Closing under the Purchase Agreement.
Section 6. Miscellaneous
(a) 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. In the event that Purchaser
assigns its rights under the Purchase Agreement to a special purpose
corporation, then the term "Purchaser" herein shall refer to such special
purpose corporation and Parent shall make or cause to be made its required
contribution hereunder directly to such special purpose corporation. Seller
shall be entitled to enforce the obligations of Parent hereunder without the
concurrence of Purchaser and regardless of any claims by Purchaser against
Seller, including any claims under, or the satisfaction or non-satisfaction
of any obligations of Seller under the Purchase Agreement. Neither this
Agreement nor any right hereunder may be assigned by any party without the
prior written consent of the parties hereto, which consent (except in the
case of a transfer by Parent of its obligations hereunder) shall not be
unreasonably withheld.
(b) This Agreement contains the entire understanding of the
parties with respect to the matters herein and supersedes all prior
agreements and understandings between the parties with respect to the subject
matter hereof.
(c) 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
other party hereto shall be addressed as provided in the Purchase Agreement
and, if to Parent, to the address for notices set forth beneath Parent's
signature below.
(d) This Agreement may not be amended or otherwise modified except
by a written agreement signed by each party hereto.
(e) THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH, AND
GOVERNED BY, THE LAWS OF THE NEW YORK EXCLUDING ITS CONFLICTS OF LAWS
PROVISIONS.
(f) If any provision of this Agreement shall be unenforceable,
void or otherwise contrary to law, such provision shall in no manner operate
to render any other provision of the Agreement unenforceable, invalid or
contrary to law, and this Agreement shall continue to be operative and
enforceable in accordance with the remaining terms and provisions hereof.
(g) 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 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 term, covenant, representation or warranty.
(h) No person other than the parties hereto, or their successors
or permitted assigns shall have any rights hereunder.
(i) The term "Montana Conditions" means all conditions to the
obligations of Seller and Purchaser to consummate the Closing as set forth in
Articles VI and VII of the Purchase Agreement (except those conditions solely
within the control of the Seller or Purchaser). The term "Puget Conditions"
means all conditions to the obligations of Puget and Purchaser under the
Puget Asset Purchase Agreement (except those conditions solely within the
control of the Puget or Purchaser). The term "Portland Conditions" means all
conditions to the obligations of Portland and Purchaser under the Portland
Asset Purchase Agreement (except those conditions solely within the control
of the Portland or Purchaser).
(j) This Agreement 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.
PP&L RESOURCES, INC.
By: ____________________ _______
Name: Xxxx X. Xxxxxx
Title: Senior Vice-President &
Chief Financial Officer
Address for Notices: Xxx Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx,Xxxxxxxxxxxx 00000
PP&L GLOBAL, INC.
By: _________________________ ___
Name: Xxxx X. Xxxxxxxxx
Title: Vice President
Address for Notices: 00000 Xxxxxx Xxxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
MONTANA POWER COMPANY
By: ___________________________ _
Name: Xxxxx X. Xxxx
Title: Vice President
Address for Notices: 00 Xxxx Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000-0000
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