Exhibit 10(f)
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 Puget Sound
Energy, Inc., ("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 Puget 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 the PGE Purchase Agreement (as the
term "Closing Date" is defined under such Agreement) (an
"Additional Notice Date"), which notice shall certify that
Seller has been notified by PGE that, as of any Additional
Notice Date, the PGE Conditions are satisfied and that, if the
Closing were to occur on such Additional Notice Date, PGE would
be prepared to satisfy the conditions to Closing that are solely
within the control of PGE. 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 plus, in the event that the notice referred
to in clause (i) states that the PGE Conditions are satisfied,
the Combined Payment Amount, 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, unless theretofore paid, make or cause to be made on the
date of the Closing under the PGE Purchase Agreement a
contribution in immediately available funds in the amount of the
the Combined Payment Amount, as applicable pursuant to Section
1.05 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 MPC Purchase Agreement or the PGE 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 such 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 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 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 Washington, 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 contributions
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 obligations 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 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 (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.
(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 other 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 this
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) (1) 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.
(2) The term "Puget 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 Seller or Purchaser). The term "MPC Conditions"
means all conditions to the obligations of MPC and Purchaser
under the MPC Purchase Agreement (except those conditions solely
within the control of MPC or Purchaser). The term "PGE
Conditions" means all conditions to the obligations of PGE and
Purchaser under the PGE Purchase Agreement (except those
conditions solely within the control of PGE or Purchaser).
(h) No person other than the parties hereto, or their
successors or permitted assigns shall have any rights hereunder.
(i) 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: /s/ JOHN R. BIGGER_________
Name: John R. Bigger
Title: Senior Vice President
and Chief Financial
Officer
Address for Notices:
Two North Ninth Street
Allentown, Pennsylvania 18101
PP&L GLOBAL, INC.
By: /s/ PAUL T. CHAMPAGNE_______
Name: Paul T. Champagne
Title: Vice President
PUGET SOUND ENERGY, INC.
By: /s/ STEVE MCKEON
Name: Stephen A. McKeon
Title: Vice President