Exhibit 10(d)
EQUITY CONTRIBUTION AGREEMENT
This EQUITY CONTRIBUTION AGREEMENT (this "Agreement") dated
as of November 1, 1998 by and among PP&L Global, Inc.
("Purchaser"), PP&L Resources, Inc. ("Parent"), and Portland
General Electric 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 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
Portland 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. Parent hereby irrevocably promises and agrees that, upon
receipt of the notice referred to in 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 (the amount required to be contributed
by Parent pursuant to the notice referred to in 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, 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 (5) five 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 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 caused 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 the 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 Oregon, and has full corporate power and authority to enter
into this Agreement and to perform its obligations hereunder.
(ii) The execution and 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 Required
Contribution Amount in response to notice 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 (5) 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
or causing to be made of the required contribution 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 "Portland 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).
(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.
IN WITNESS WHEREOF, this Agreement has been duly executed
and delivered by the duly authorized officer of each party as of
the date first above written.
PP&L RESOURCES, INC.
By:__________________________
Name: John R. Biggar
Title: Senior Vice President & Chief Financial Officer
Address for Notices:
Two North Ninth Street
Allentown, Pennsylvania 18101
PP&L GLOBAL, INC.
By:__________________________
Name: Paul T. Champagne
Title: Vice President
Address for Notices:
11350 Random Hills Road
Suite 400
Fairfax, Virginia 22030
PORTLAND GENERAL ELECTRIC
COMPANY
By:__________________________
Name: James Piro
Title: Vice President
Address for Notices:
121 SW Salmon Street
Portland, Oregon 97204