May 5, 1998
PP&L, Inc.
Two North Ninth Street
Allentown, PA 18101
Attn: Treasurer
Facsimile: Our Reference: PP&L Call Option
TRANSACTION: (SECURITIES PURCHASE OPTION AGREEMENT -- PP&L, INC.
CALL OPTION WITH MORGAN STANLEY & CO. INTERNATIONAL
LIMITED)
The purpose of this letter agreement (this "Agreement") is to
confirm the terms and conditions of the Transaction entered
into between MORGAN STANLEY & CO. INTERNATIONAL LIMITED, a
corporation organized under the laws of England ("Morgan
Stanley" or "Seller"), and PP&L, INC., a corporation
organized under the laws of the State of Pennsylvania
("Counterparty" or "Buyer"), on the Trade Date specified
below (the "Transaction").
The definitions and provisions contained in the 1991 ISDA
Definitions (as published by the International Swaps and
Derivatives Association, Inc.)(the "1991 Definitions") are
hereby incorporated into this Agreement. In the event of
any inconsistency between those definitions and provisions
and this Agreement, this Agreement will govern. Capitalized
terms not otherwise defined herein shall have the meanings
set forth in the 1991 Definitions.
This Agreement will be governed by and construed in accordance
with the laws of the State of New York without reference to
choice of law doctrine.
The terms of the Transaction to which this Agreement relates are
as follows:
1. GENERAL TERMS:
Trade Date: April 28, 1998.
Option Style: American Option.
Option Type: Call.
Seller: Morgan Stanley & Co.
International Limited.
Buyer: Counterparty.
Bonds: US$ 200,000,000 First Mortgage Bonds 6 %
REset Put Securities Series due 2006 of
the Issuer.
Indenture: The Mortgage and Deed of Trust dated as of
October 1, 1945, between the Issuer and
Bankers Trust Company (successor to Morgan
Guaranty Trust Company of New York), as
trustee, as amended and supplemented by
sixty-six supplemental indentures (as so
amended and supplemented, the
"Indenture"), pursuant to which the Bonds
were issued.
Issuer: Counterparty.
Aggregate Face US$ 200,000,000.
Amount of Bonds:
Settlement Amount: The excess, if any, on the Coupon Reset
Date of (a) the aggregate present value of
the principal and interest payments that
would have been due on the Aggregate Face
Amount of Bonds after such date if such
Bonds bore interest at the rate of 5.72%
and remained outstanding until May 1,
2006, determined by discounting, on a
semi-annual basis, such principal and
interest payments at the Treasury Rate
from the respective dates on which such
payments would have been due, over (b) the
Aggregate Face Amount of Bonds.
Settlement The Coupon Reset Date.
Date:
Treasury Rate: The per annum rate equal to the offer side
yield to maturity of the current on-the-
run 5-year United States Treasury Security
per Telerate page 500, or any successor
page, at 11:00 a.m., New York time, on the
third Business Day prior to the Coupon
Reset Date (the "Bid Date") (or such other
date that may be agreed upon by the
Counterparty and the Calculation Agent)
or, if such rate does not appear on
Telerate page 500, or any successor page,
at such time, such rate on GovPX End-of-
Day Pricing at 3:00 p.m., New York time,
on the Bid Date (or such other date and
time that may be agreed upon by the
Counterparty and the Calculation Agent).
Coupon Reset Date: May 1, 2001.
Premium: None.
Business Day: Any day other than a Saturday, a Sunday or
a day on which banking institutions in the
City of New York are authorized or
required by law or regulation to be
closed.
Business Day Following.
Convention:
Calculation Morgan Stanley & Co. Incorporated
Agent: ("MS&Co."), as described in the
Calculation Agency Agreement dated as of
May 5, 1998, between the Counterparty and
MS&Co., whose determinations shall be
binding in the absence of manifest error.
2. PROCEDURE FOR EXERCISE:
Exercise Period: Any Business Day from, and including,
15 calendar days prior to the Coupon Reset
Date to, and including, the Expiration
Date, between 9:00 a.m. and 3:00 p.m., New
York City time.
Condition to It shall be a condition to exercise of
Exercise: the right granted to the Counterparty
pursuant to this Agreement that the Bond
Call Option shall have been exercised.
Bond Call Option: The call option on the Bonds provided for
in the terms of the Bonds and as assigned
to Morgan Stanley in Section 7.
Exercise Date: The date on which notice of exercise is
given during the Exercise Period.
Expiration Date: The fourth Business Day after 15 calendar
days prior to the Coupon Reset Date;
provided, however, that in the event of a
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Market Disruption Event, the Expiration
Date shall be the Bid Date.
Notice of Exercise The Counterparty must deliver
and Written irrevocable notice to Morgan Stanley
Confirmation: (which may be delivered orally, including
by telephone) of its exercise of the right
granted pursuant to this Agreement during
the hours of 9:00 a.m. to 3:00 p.m, New
York time, on any Business Day during the
Exercise Period.
If a notice of exercise is delivered
orally, the Counterparty will execute and
deliver a written confirmation confirming
the substance of that notice and account
details or delivery instructions within
one Business Day of that notice. Failure
to provide that written confirmation will
not affect the validity of that oral
notice.
3. SETTLEMENT TERMS:
If (a) this Agreement has not been terminated and
(b) Morgan Stanley actually has received a Notice of Exercise
from the Counterparty during the Exercise Period, then:
(1) Morgan Stanley shall promptly deliver to the
Counterparty an assignment of all its right, title and
interest and obligations in, to and under the Bond Call
Option;
(2) the Counterparty shall automatically and without
further action assume and be liable for the performance
of all of Morgan Stanley's obligations under the Bond
Call Option; and
(3) the Counterparty shall pay the Settlement Amount (in
immediately available funds) to Morgan Stanley on the
Settlement Date.
4. NOTICE AND ACCOUNT DETAILS:
Morgan Stanley Morgan Stanley & Co. International
Details for Limited
Notice: In care of Morgan Stanley & Co.
Incorporated
1585 Broadway, 3rd Floor
New York, NY 10036
Telephone: 212-761-2566
Telefax: 212-761-0580
Attention: Derivative Products Group --
Legal & Documentation
with a copy to:
Morgan Stanley & Co. Incorporated
1585 Broadway, 3rd Floor
New York, NY 10036
Telephone: 212-761-2566
Telefax: 212-761-0580
Attention: Derivative Products Group --
Legal & Documentation
Counterparty PP&L, Inc.
Details for Two North Ninth Street
Notice: Allentown, PA 18101
Attention: Treasurer
Account Details:
Account Citibank, New York
Details of ABA 021-000-089
Morgan A/c No. 4072-4601
Stanley: BIC: CITIUS 33
Account Mellon Bank, N.A., Philadelphia,
Details of ABA 031-000-037
Counterparty: A/C No. 2-334-233
BIC: MELNUS 3P
5. TERMINATION OF OPTION.
Subject to any payment or delivery obligations pursuant
to this Agreement, upon the termination of the Bond Call
Option by its terms this Transaction shall automatically
terminate. If the Counterparty exercises its rights under
this Agreement as set forth in Section 3, the Counterparty
shall deliver the Settlement Amount to Morgan Stanley and
Morgan Stanley shall assign its rights under the Bond Call
Option in accordance with Section 3 and this Agreement shall
terminate. No other amount shall be payable by Morgan Stanley
or the Counterparty in respect of this Agreement unless the
Bond Call Option was terminated due to any of the following:
(a) at any time prior to the sale of the Bonds on the Bid
Date, an Event of Default has occurred and is continuing under
subsections (a), (b), (c), (d) or (g) of Section 65 under the
Indenture or a Cross-Default has occurred and is continuing
(in such event, termination is at Morgan Stanley's option) or
under subsections (e) or (f) of Section 65 under the Indenture
(in such event, termination is automatic), (b) if following
the Call Notice (as defined in the Bonds), fewer than two
Dealers (as defined in the Bonds) have submitted Bids (as
defined in the Bonds) in a timely manner substantially as
provided in the Bonds, or (c) if, following the Call Notice,
Morgan Stanley fails to pay the Call Price (as defined in the
Bonds) by 2:00 p.m., New York time, on the Business Day prior
to the Coupon Reset Date due to the occurrence of a Market
Disruption Event.
If any of the events set forth in (a), (b) or (c) above
has occurred and the Bond Call Option so terminates, the
Counterparty shall, on the first date the Termination Amount
is calculated (and in no event later than the fifteenth
Business Day following the date of termination of the Bond
Call Option), pay to Morgan Stanley, or its assignee, the
Termination Amount in respect of Morgan Stanley's losses under
the Bond Call Option. Following such termination and upon
payment of the Termination Amount, Morgan Stanley shall
deliver any and all of its remaining rights, if any, under the
Bond Call Option as described under Section 3.
For purposes of this Agreement:
"Market Disruption Event" shall mean any of the
following events, if such events occur or are continuing
on any day from, and including, 15 calendar days prior to
the Coupon Reset Date to, and including, the Bid Date in
the judgment of the Calculation Agent: (a) a suspension
or material limitation in trading in securities generally
on the New York Stock Exchange or the establishment of
minimum prices on such exchange; (b) a general moratorium
on commercial banking activities declared by either
federal or New York State authorities; (c) any material
adverse change in the existing financial, political or
economic conditions in the United States of America;
(d) an outbreak or escalation, of major hostilities
involving the United States of America or the declaration
of a national emergency or war by the United States of
America; or (e) any material disruption of the U.S.
Treasury securities market, U.S. corporate bond market or
U.S. federal wire system; provided, in each case, that in
the judgment of the Calculation Agent the effect of the
foregoing makes it impractical to conduct the coupon
reset process.
"Cross Default" shall mean the occurrence or
existence of (i) a default, event of default or other
similar condition or event (however described) in respect
of the Counterparty (after giving effect to any
applicable notice requirement or grace period) under one
or more agreements or instruments relating to any
obligation (whether present or future, contingent or
otherwise, as principal or surety or otherwise) for the
payment or repayment of any money ("Specified
Indebtedness"), individually or collectively, in an
aggregate amount of not less than $100,000,000, which has
resulted in such Specified Indebtedness becoming, or
becoming capable at such time of being declared, due and
payable under such agreements or instruments, before it
would otherwise have been due and payable, or (ii) a
default by the Counterparty in making one or more
payments on the due date thereof in an aggregate amount
of not less than $100,000,000 under such agreements or
instruments (after giving effect to any applicable notice
requirement or grace period).
"Termination Amount" shall mean the fair market
value, as of the date of the termination of this
Agreement, of the option to receive the Settlement Amount
on the Settlement Date. If this Agreement terminates on
or after 15 calendar days prior to the Coupon Reset Date,
then the Termination Amount shall be deemed to equal the
Settlement Amount. Fair market value shall be determined
by MS&Co., by requesting bids from five Reference
Dealers, one of which shall be MS&Co., within five
Business Days of the date this Agreement terminates.
MS&Co. shall (i) if five bids were made, disregard the
lowest and the highest bid and (ii) average the remaining
bids to determine the fair market value; provided that,
if MS&Co. has not received all five bids within 10
Business Days following the request for such bids, the
fair market value shall be the average of the bids that
have been received by 5:00 p.m. as of the tenth Business
Day following MS&Co.'s initial request for such bids. If
MS&Co. determines that the bids provided do not reflect a
reasonably accurate valuation of the Termination Amount,
the Termination Amount shall equal the amount that MS&Co.
reasonably determines in good faith to be the total
losses and costs of Morgan Stanley in connection with
this Agreement.
"Reference Dealer" shall mean a market dealer,
selected in good faith by MS&Co., that makes markets in
derivative transactions for corporate and U.S. Treasury
securities in the normal course of business.
"Affiliate" shall mean, in relation to any party,
any entity controlled, directly or indirectly, by the
party, any entity that controls, directly or indirectly,
the party or any entity directly or indirectly under a
common control with the party. For this purpose,
"control" of any entity or party means ownership of a
majority of the voting power of the entity or party.
Neither this Agreement nor any of the rights, interests
or obligations under this Agreement shall be assigned, in
whole or in part, by operation of law or otherwise by either
party without the prior written consent of the other party;
provided, however, that Morgan Stanley may assign its right to
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receive the Termination Amount hereunder to any Affiliate, to
which assignment the Counterparty hereby agrees, upon giving
written notice of such assignment to the Counterparty.
MS&Co.'s sole role under this Agreement and with respect to
the Transaction is as an agent of Morgan Stanley and the
Counterparty on a disclosed basis. MS&Co. is authorized to
act as agent for the Counterparty only to the extent required
to enable Morgan Stanley to satisfy the requirements of Rule
15a-6 of the Securities Exchange Act of 1934, as amended
("Rule 15a-6"), in respect of the Transaction described
herein. MS&Co. shall have no authority to act as agent for
the Counterparty with respect to the Transaction or other
matters governed by this Agreement, except in accordance with
instructions from the Counterparty. MS&Co. does not guarantee
the performance of Morgan Stanley.
6. PAYMENT BY MORGAN STANLEY.
Morgan Stanley will make a payment of US$100,000 to the
Counterparty on May 5, 1998, which amount represents a
reasonable payment for the right to receive the Termination
Amount upon the termination of this Transaction in the
circumstances described in Section 5.
7. ASSIGNMENT OF BOND CALL OPTION.
Morgan Stanley will make a payment of US$2,800,000 to the
Counterparty on May 5, 1998, which amount represents a
reasonable payment for the Counterparty assigning, and the
Counterparty hereby assigns, all its right, title and interest
and obligations in, to and under the Bond Call Option to
Morgan Stanley and Morgan Stanley hereby assumes all the
obligations and liabilities of the Counterparty under the Bond
Call Option.
8. REPRESENTATIONS OF THE PARTIES:
(a) Each party represents and warrants to the other
party that:
(i) Status. It is duly organized and validly
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existing under the laws of the jurisdiction
of its organization or incorporation and, if
relevant under such laws, in good standing;
(ii) Powers. It has the corporate power to
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execute, deliver and perform its obligations
under this Agreement and has taken all
necessary action to authorize such execution,
delivery and performance;
(iii) No Violation or Conflict. Such execution,
------------------------
delivery and performance do not violate or
conflict with any law applicable to it, any
provision of its constitutional documents,
any order or judgment of any court or other
agency of government applicable to it or any
of its assets or any contractual restriction
binding on or affecting it or any of its
assets;
(iv) Consents. All governmental and other
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consents that are required to have been
obtained by it with respect to this Agreement
have been obtained and are in full force and
effect and all conditions of any such
consents have been complied with;
(v) Obligations Binding. Its obligations under
-------------------
this Agreement constitute its legal, valid
and binding obligations, enforceable in
accordance with their respective terms
(subject to applicable bankruptcy,
reorganization, insolvency, moratorium or
similar laws affecting creditors' rights
generally and subject, as to enforceability,
to equitable principles of general
application (regardless of whether
enforcement is sought in a proceeding in
equity or at law));
(vi) Absence of Litigation. There is not pending
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or, to its knowledge, threatened against it
or any of its Affiliates any action, suit or
proceeding at law or in equity or before any
court, tribunal, governmental body, agency or
official or any arbitrator that is likely to
affect the legality, validity or
enforceability against it of this Agreement
or its ability to perform its obligations
under this Agreement;
(vii) Non-Reliance. It is acting for its own
------------
account, and it had made its own independent
decisions to enter into this Agreement and as
to whether this Agreement is appropriate or
proper for it based upon its own judgment and
upon advice from such advisers as it has
deemed necessary. It is not relying on any
communication (written or oral) of the other
party as investment advice or as a
recommendation to enter into this Agreement;
it being understood that information and
explanations related to the terms and
conditions of this Agreement shall not be
considered investment advice or a
recommendation to enter into this Agreement.
No communication (written or oral) received
from the other party shall be deemed to be an
assurance or guarantee as to the expected
results of this Agreement;
(viii) Assessment and Understanding. It is capable
----------------------------
of assessing the merits of and understanding
(on its own behalf or through independent
professional advice), and understands and
accepts, the terms, conditions and risks of
this Agreement. It is also capable of
assuming, and assumes, the risks of this
Agreement;
(ix) Status of Parties. The other party is not
-----------------
acting as a fiduciary for or an adviser to
it in respect of this Agreement;
(x) Parties to the Agreement. The Counterparty
------------------------
and Morgan Stanley are the parties to this
Agreement, with MS&Co. as agent for Morgan
Stanley and, subject to the limitations set
forth in Section 5, the Counterparty; and
(xi) Other Matters.
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(1) This Agreement constitutes a "swap
agreement" within the meaning of
Commodity Futures Trading Commission
("CFTC") Regulations Section 35.1(b)(1);
(2) It is an "eligible swap participant"
within the meaning of CFTC Regulations
Section 35.1(b)(2);
(3) This Agreement is not one of a fungible
class of agreements that are
standardized as to their material
economic terms, within the meaning of
CFTC Regulations Section 35.2(b);
(4) The creditworthiness of the other party
was a material consideration in entering
into or determining the terms of this
Agreement, including pricing, cost or
credit enhancement terms, within the
meaning of CFTC Regulations Section
35.2(c);
(5) It has entered into this Agreement in
conjunction with its line of business
(including financial intermediation
services) or the financing of its
business; and
(6) It is a Qualified Institutional Buyer as
defined in Rule 144A under the
Securities Act of 1933, as amended.
(b) The Counterparty represents and warrants to Morgan
Stanley that no Event of Default under the Indenture
has occurred and is continuing and no such event or
circumstance would occur as a result of its entering
into or performing its obligations under this
Agreement.
9. BASIC COVENANTS:
Each party agrees with the other that, so long as either
party has or may have any obligation under this Agreement:
(a) Maintain Authorizations. It will use all reasonable
-----------------------
efforts to maintain in full force and effect all
consents of any governmental or other authority that
are required to be obtained by it with respect to
this Agreement and will use all reasonable efforts
to obtain any that may become necessary in the
future.
(b) Comply with Laws. It will comply in all material
----------------
respects with all applicable laws and orders to
which it may be subject if failure so to comply
would materially impair its ability to perform its
obligations under this Agreement; and
(c) Procedures.
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(i) This Agreement will be effected through
MS&Co., as agent for the parties;
(ii) MS&Co. will be responsible for the
operational aspects of this Agreement, such
as record keeping and reporting;
(iii) Unless the Counterparty is a "major U.S.
institutional investor" (as defined in Rule
15a-6), neither party will contact the other
without the direct involvement of MS&Co.;
(iv) MS&Co. has no obligation, by guaranty,
endorsement or otherwise, with respect to
performance of either party's obligations;
and
(v) MS&Co.'s sole role under this Agreement is as
an agent of the parties on a disclosed basis.
(d) Purchase of Bonds. Without the prior approval of
-----------------
Morgan Stanley, the Counterparty may not (i)
purchase any of the Bonds prior to the Coupon Reset
Date or (ii) discontinue use of the system of book-
entry transfers through The Depository Trust Company
(or a successor securities depositary) prior to the
Coupon Reset Date.
10. GENERAL PROVISIONS:
(a) Jurisdiction. With respect to any suit, action or
------------
proceedings relating to this Agreement
("Proceedings"), each party irrevocably:
(i) submits to the exclusive jurisdiction of the
courts of the State of New York and the
United States District Court located in the
Borough of Manhattan in New York City; and
(ii) waives any objection which it may have at any
time to the laying of venue of any
Proceedings brought in any such court, waives
any claim that such Proceedings have been
brought in an inconvenient forum and further
waives the right to object, with respect to
such Proceedings, that such court does not
have any jurisdiction over such party.
(b) Waiver of Jury Trial. Each party waives, to the
--------------------
fullest extent permitted by applicable law, any
right it may have to a trial by jury in respect of
any Proceedings. Each party (i) certifies that no
representative, agent or attorney or other party has
represented, expressly or otherwise, that such other
party would not, in the event of litigation, seek to
enforce the foregoing waiver and (ii) acknowledges
that it has been induced to enter into this
Agreement by, among other things, the mutual waivers
and certifications set forth above in this Section.
(c) Expenses. If either the Counterparty, on the one
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hand, or Morgan Stanley, on the other hand, is in
default of its obligations under this Agreement,
such party will, on demand, indemnify and hold
harmless the other party for and against all
reasonable out-of-pocket expenses, including legal
fees, incurred by such other party by reason of the
enforcement and protection of its rights under this
Agreement in connection with any default, including,
but not limited to, costs of collection.
(d) Currency. All cash amounts required to be paid
--------
under this Agreement shall be in US$.
(e) Interpretation. When a reference is made in this
--------------
Agreement to a Section, such reference shall be to
a Section of this Agreement unless otherwise
indicated. The headings contained in this Agreement
are for reference purposes only and shall not affect
in any way the meaning or interpretation of this
Agreement.
(f) Counterparts.
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(i) This Agreement may be executed in one or more
counterparts, all of which shall be
considered one and the same agreement and
each of which shall be deemed an original.
(ii) This Agreement shall become effective when
one or more counterparts have been signed by
each of the parties and delivered to the
other parties.
(g) Entire Agreement; No Third-Party Beneficiaries.
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This Agreement constitutes the entire agreement,
and supersedes all prior agreements and
understandings, both written and oral, among the
parties with respect to the subject matter of this
Agreement and is not intended to confer upon any
person other than the parties any rights or
remedies.
(h) Amendments. No amendment, modification or waiver in
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respect of this Agreement will be effective unless
in writing (including a writing evidenced by a
facsimile transmission) and executed by each of the
parties.
(i) No Waiver of Rights. A failure or delay in
-------------------
exercising any right, power or privilege in respect
of this Agreement will not be presumed to operate as
a waiver, and a single or partial exercise of any
right, power or privilege will not be presumed to
preclude any subsequent or further exercise, of that
right, power or privilege or the exercise of any
other right, power or privilege.
(j) Remedies Cumulative. Except as provided in this
-------------------
Agreement, the rights, powers, remedies and
privileges provided in this Agreement are cumulative
and not exclusive of any rights, powers, remedies
and privileges provided by law.
In consideration of the mutual representations,
warranties and covenants herein contained, and on the terms
and subject to the conditions herein set forth, please confirm
that the foregoing correctly sets forth the terms of our
agreement by executing this Agreement and returning it to us.
Very truly yours,
MORGAN STANLEY & CO.
INTERNATIONAL LIMITED,
by
--------------------
Name:
Title:
MORGAN STANLEY & CO.
INCORPORATED, as agent,
by
--------------------
Name:
Title:
Accepted and confirmed as of the date
first above-written:
PP&L, INC.,
by
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Name:
Title: