1
Exhibit 10.9
GENERAL ASSIGNMENT AND BILL OF SALE
THIS GENERAL ASSIGNMENT AND BILL OF SALE is entered into this
17th day of December, 1999 by and among, PP&L Global, Inc., a Pennsylvania
corporation ("PP&L Global"), Colstrip Comm Serv, LLC, a Delaware limited
liability company ("Comm Serv"), and PP&L Montana, LLC, a Delaware limited
liability company ("PP&L Montana") (PP&L Global, Comm Serv and PP&L Montana are
collectively referred to herein as "Assignees" and individually, as "Assignee"),
and The Montana Power Company, a Montana corporation ("Seller").
WHEREAS, Seller and PP&L Global have entered into an Asset
Purchase Agreement, dated as of October 31, 1998 as amended June 29, 1999 and
October 29, 1999 (as amended, the "Asset Purchase Agreement"; capitalized terms
not defined herein shall have the meanings ascribed to them in the Asset
Purchase Agreement), pursuant to which Seller has agreed to sell, transfer,
convey, assign and deliver to PP&L Global and PP&L Global has agreed to purchase
and acquire from Seller the Generating Assets and certain other assets of Seller
used or held for use principally in connection with the operation of the
Generating Assets, and PP&L Global has agreed, in partial consideration
therefor, to assume certain obligations in connection therewith by executing an
Assumption Agreement of even date herewith;
WHEREAS, the Asset Purchase Agreement provides that PP&L
Global may assign its interests in the Asset Purchase Agreement to a Subsidiary,
provided that such Subsidiary agrees in writing to be bound by the Asset
Purchase Agreement and provided, further, that no such assignment shall relieve
PP&L Global;
WHEREAS, PP&L Global has formed Comm Serv and PP&L Montana,
both indirect wholly-owned Subsidiaries of PP&L Global; and by Instrument of
Assignment (the "Assignment") dated the date hereof PP&L Global assigned all of
its rights, interests and obligations under the Asset Purchase Agreement to Comm
Serv and PP&L Montana, as follows: (A) to Comm Serv, that portion of such
rights, interests and obligations as relates to the Specified Assets (the term
"Specified Assets" has the meaning ascribed to it in the Assignment); and (B) to
PP&L Montana, the balance of such rights, interests and obligations;
WHEREAS, Seller desires to transfer and assign to Assignees
the assets described below pursuant to Section 1.05 of the Asset Purchase
Agreement and Assignees desire to accept the sale, transfer, conveyance,
assignment and delivery thereof;
NOW, THEREFORE, for and in consideration of the mutual covenants contained
herein and other good and valuable consideration the receipt and sufficiency of
which are hereby acknowledged, Seller hereby irrevocably sells, transfers,
conveys, assigns and delivers all of Seller's right, title and interest in, to
and under the Assets, free and clear of all Liens except
Gen. Assign. & Bill of Sale Execution Copy
2
Permitted Liens (as such term is defined in the Asset Purchase Agreement with
respect to periods after the date of the Closing), to Assignees, as follows: (i)
to Comm Serv, the Specified Assets (the "Comm Serv Assets") and (ii) to PP&L
Montana, the balance of the Assets (the "PP&L Montana Assets") (collectively the
Comm Serv Assets and PP&L Montana Assets are referred to herein as the "Assigned
Assets"), TO HAVE AND TO HOLD the same unto Assignees, their successors and
assigns, forever.
Assignees hereby accept the sale, transfer, conveyance,
assignment and delivery of the Assigned Assets. Notwithstanding anything herein
to the contrary, the Excluded Assets are specifically excluded from the Assigned
Assets and shall be retained by Seller at and following the date of the Closing.
At any time or from time to time after the date hereof, at the
request of either Comm Serv or PP&L Montana and without further consideration,
Seller shall execute and deliver to such Assignee such other instruments of
sale, transfer, conveyance, assignment and confirmation, provide such materials
and information and take such other actions as such Assignee may reasonably deem
necessary or desirable in order more effectively to transfer, convey and assign
to such Assignee, and to confirm such Assignee's title to, the Assigned Assets
assigned to such Assignee, and, to the full extent permitted by Law, to put such
Assignee in actual possession and operating control of the Assigned Assets
assigned to such Assignee and to assist such Assignee in exercising all rights
with respect thereto.
Seller hereby constitutes and appoints (i) Comm Serv, as to
Comm Serv Assets and (ii) PP&L Montana, as to PP&L Montana Assets, the true and
lawful attorneys of Seller, with full power of substitution, in the name of
Seller or the appropriate Assignee, but on behalf of and for the benefit of the
appropriate Assignee: (i) to demand and receive from time to time any and all of
the Assigned Assets assigned to such Assignee and to make endorsements and give
receipts and releases for and in respect of the same and any part thereof; (ii)
to institute, prosecute, compromise and settle any and all Actions or
Proceedings that such Assignee may deem proper in order to collect, assert or
enforce any claim, right or title of any kind in or to the Assigned Assets
assigned to such Assignee; (iii) to defend or compromise any or all Actions or
Proceedings in respect of any of the Assigned Assets assigned to such Assignee;
and (iv) to do all such acts and things in relation to the matters set forth in
the preceding clauses (i) through (iii) as such Assignee shall deem desirable.
Seller hereby acknowledges that the appointment hereby made and the powers
hereby granted are coupled with an interest and are not and shall not be
revocable by it in any manner or for any reason. Assignees shall indemnify and
hold harmless Seller and its officers, directors, employees, agents and
Affiliates from any and all Losses caused by or arising out of any breach of Law
by Assignees in their exercise of the aforesaid powers.
This General Assignment and Bill of Sale may be executed in
any number of counterparts, each of which will be deemed an original, but all of
which together will constitute one and the same instrument.
2
Gen. Assign. & Bill of Sale Execution Copy
3
This General Assignment and Bill of Sale and all of the
provisions hereof shall be binding upon and shall inure to the benefit of the
respective parties and their assigns, transferees and successors.
This General Assignment and Bill of Sale shall be governed by
and construed in accordance with the laws of the State of New York applicable to
a contract executed and performed in such State without giving effect to the
conflicts of laws principles thereof, except that if it is necessary in any
other jurisdiction to have the law of such other jurisdiction govern this
General Assignment and Bill of Sale in order for this General Assignment and
Bill of Sale to be effective in any respect, then the laws of such other
jurisdiction shall govern this General Assignment and Bill of Sale to such
extent.
This General Assignment and Bill of Sale is delivered pursuant
to and is subject to the Asset Purchase Agreement. In the event of any conflict
between the terms of the Asset Purchase Agreement and the terms of this General
Assignment and Bill of Sale, the terms of the Asset Purchase Agreement shall
prevail.
3
Gen. Assign. & Bill of Sale Execution Copy
4
IN WITNESS WHEREOF, the undersigned have caused their duly
authorized officers to execute this General Assignment and Bill of Sale on the
day and year first above written.
PP&L Global, Inc.
By: /s/ Robert W. Burke
-----------------------------------
Signature
Robert W. Burke
-----------------------------------
Printed Name
Vice President
-----------------------------------
Title
12-17-99
-----------------------------------
Date
Colstrip Comm Serv, LLC
By: /s/ Roger Petersen
-----------------------------------
Signature
Roger Petersen
-----------------------------------
Printed Name
President
-----------------------------------
Title
12/17/99
-----------------------------------
Date
PP&L Montana, LLC
By: /s/ Roger Petersen
-----------------------------------
Signature
Roger Petersen
-----------------------------------
Printed Name
President
-----------------------------------
Title
12/17/99
-----------------------------------
Date
4
Gen. Assign. & Bill of Sale Execution Copy
5
The Montana Power Company
By: /s/ Michael E. Zimmerman
-----------------------------------
Signature
Michael E. Zimmerman
-----------------------------------
Printed Name
Vice President and General Counsel
-----------------------------------
Title
12/17/99
-----------------------------------
Date
5
Gen. Assign. & Bill of Sale Execution Copy