EXHIBIT 4.8
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PP&L RESOURCES, INC.
PP&L CAPITAL FUNDINGS, INC. _____% DEFERRABLE NOTES DUE ____
GUARANTEED AS TO PAYMENT OF PRINCIPAL,
PREMIUM, IF ANY, AND INTEREST BY
PP&L RESOURCES, INC.
[Date]
[Remarketing Agent]
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Ladies and Gentlemen:
_________________________________ (the "Remarketing Agent") is
undertaking to remarket the ___% Deferrable Notes due _______________ (the
"Notes"), issued by PP&L Capital Funding, Inc., a Delaware corporation ("Capital
Funding"), and unconditionally guaranteed as to payment of principal, premium,
if any, and interest by PP&L Resources, Inc., a Pennsylvania corporation (the
"Company"), pursuant to the Indenture, dated as of _______, among Capital
Funding, the Company and _________, as trustee (the "Indenture Trustee") as
amended and supplemented by the First Supplemental Indenture to the Indenture,
dated _______, relating to the Notes (as amended or supplemented, the
"Indenture").
The Remarketing (as defined below) of the Notes is provided for in an
Officer's Certificate relating to and establishing certain terms of the Notes
(the "Officer's Certificate").
SECTION 1. DEFINITIONS.
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(a) Capitalized terms used and not defined in this Agreement shall have the
meanings set forth in the Purchase Contract Agreement, dated as of _______ (the
"Purchase Contract Agreement"), between the Company and The Chase Manhattan
Bank, a New York banking corporation, as Purchase Contract Agent and Trustee
(the "Purchase Contract Agent"), or in the Officer's Certificate, as the case
may be.
(b) As used in this Agreement, the following terms have the following
meanings:
"Remarketed Notes" means the Notes subject to the Remarketing, as
identified to the Remarketing Agent by the Purchase Contract Agent after
11:00 a.m. on the fifth Business Day immediately preceding the Purchase
Contract Settlement Date;
"Remarketing Procedures" means the procedures in connection with the
Remarketing of the Notes described in the Officer's Certificate;
"Remarketing" means the remarketing of the Remarketed Senior
Deferrable Notes pursuant to the
Remarketing Procedures; and
"Subsidiary" has the meaning set forth in Rule 405 under the
Securities Act.
SECTION 2. APPOINTMENT AND OBLIGATIONS OF THE REMARKETING AGENT.
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(a) The Company hereby appoints ______________ as exclusive remarketing
agent (the "Remarketing Agent"), and ______________ hereby accepts appointment
as Remarketing Agent, for the purpose of (1) Remarketing Remarketed Notes on
behalf of the holders thereof and (2) performing such other duties as are
assigned to the Remarketing Agent in the Remarketing Procedures, all in
accordance with and pursuant to the Remarketing Procedures.
(b) The Remarketing Agent agrees to (1) use reasonable efforts to remarket
the Remarketed Notes tendered or deemed tendered to the Remarketing
Agent in the Remarketing, (2) notify the Company promptly of the Reset Rate and
(3) carry out such other duties as are assigned to the Remarketing Agent in the
Remarketing Procedures, all in accordance with the provisions of the Remarketing
Procedures.
(c) On the third Business Day immediately preceding the Purchase Contract
Settlement Date (the "Remarketing Date"), the Remarketing Agent shall use
reasonable efforts to remarket, at a price at least equal to [100.25%] of the
Stated Amount, the Remarketed Notes tendered or deemed tendered for purchase.
(d) If, as a result of the efforts described in Section 2(b), the
Remarketing Agent determines that it will be able to remarket all Remarketed
Notes tendered or deemed tendered for purchase at a price at least equal to
[100.25%] of the Stated Amount prior to 4:00 p.m. (New York City time) on the
Remarketing Date without increasing the Coupon Rate, the Remarketing Agent shall
set the Reset Rate at the Coupon Rate. If the Remarketing Agent determines
immediately prior to Remarketing that it will not be able to remarket all of the
Remarketed Notes tendered or deemed tendered for purchase at a price at least
equal to [100.25%] of the Stated Amount, the Remarketing Agent shall set the
Reset Rate at a rate per annum (rounded to the nearest one-thousandth of one
percent per annum) that the Remarketing Agent determines to be the lowest rate
per annum that will enable it to remarket all of the Remarketed Notes tendered
or deemed tendered for purchase at a price equal to [100.25%] of the Stated
Amount.
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(e) upon receipt of the proceeds from the Remarketing, the Remarketing
Agent shall:
(1) retain [25 basis points (.25%)] of the Stated Amount for the
performance of its services as Remarketing Agent hereunder;
(2) remit to the Collateral Agent all excess proceeds of the
Remarketed Notes subject to the Pledge Agreement; and
[(3) remit to [the holders] all excess proceeds, if any, of the
Remarketed Notes not subject to the Pledge Agreement.]
(f) If none of the holders of Remarketed Notes elects to have Remarketed
Notes remarketed in the Remarketing, the Remarketing Agent shall determine the
rate that would have been established had a Remarketing been held on the
Remarketing Date, and such rate shall be the Reset Rate.
(g) If, by 4:00 p.m. (New York City time) on the Remarketing Date, the
Remarketing Agent is unable to remarket all Remarketed Notes tendered or deemed
tendered for purchase, a failed Remarketing ("Failed Remarketing") shall be
deemed to have occurred, and the Remarketing Agent shall so advise by telephone
DTC, the Indenture Trustee and the Company. In the event of a Failed
Remarketing, the Reset Rate shall equal the Two-Year Benchmark Treasury rate
plus the Applicable Margin.
(h) Provided that there has not been a Failed Remarketing, by approximately
4:30 p.m. (New York City time) on the Remarketing Date, the Remarketing Agent
shall advise, by telephone:
(1) DTC, the Indenture Trustee and the Company of the Reset Rate
determined in the Remarketing and the number of Remarketed Notes sold in
the Remarketing;
(2) each purchaser (or the Clearing Agency Participant thereof) of
Remarketed Notes of the Reset Rate and the number of Remarketed Notes such
purchaser is to purchase; and
(3) each purchaser to give instructions to the Clearing Agency
Participant to pay the purchase price on the Purchase Contract Settlement
Date in same day funds against delivery of the Remarketed Notes purchased
through the facilities of DTC.
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SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
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The Company represents and warrants (i) on and as of the date hereof,
(ii) on and as of the date the Prospectus Supplement or other Remarketing
Materials (each as defined in Section 3(a) below) are first distributed in
connection with the Remarketing (the "Commencement Date"), (iii) on and as of
the Remarketing Date, and (iv) on and as of the Purchase Contract Settlement
Date that:
(a) The conditions for use of Form S-3, as set forth in the General
Instructions thereto, have been satisfied.
(b) A registration statement on Form S-3 (File No. _________) and an
amendment or amendments thereto with respect to the initial offering of the
Notes has (i) been prepared by the Company in conformity with the requirements
of the Securities Act of 1933, as amended (the "Securities Act"), and the rules
and regulations (the "Rules and Regulations") of the Securities and Exchange
Commission (the "Commission") thereunder; (ii) been filed with the Commission
under the Securities Act, and (iii) become effective under the Securities Act; a
registration statement on Form S-3, if required to be filed in connection with
the Remarketing also may be prepared by the Company in conformity with the
requirements of the Securities Act and the Rules and Regulations and filed with
the Commission under the Securities Act; and the Indenture has been qualified
under the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act").
Copies of such registration statement or registration statements that have
become effective and the amendment or amendments to such registration statements
have been delivered by the Company to you.
As used in this Agreement, "Effective Time" means the date and time as
of which the last of such registration statements that have become effective or
may be filed, or the most recent post-effective amendment thereto, if any, was
declared effective by the Commission;
"Effective Date" means the date of the Effective Time of such last
registration statement;
"Preliminary Prospectus" means each prospectus included in such last
registration statement, or amendment thereto, before it became effective
under the Securities Act and any prospectus filed by the Company with your
consent pursuant to Rule 424(a) of the Rules and Regulations;
"Registration Statement" means such last registration statement, as
amended at its Effective Time, including documents incorporated by
reference therein at such time and, if applicable, all information
contained in the final prospectus filed with the Commission pursuant to
Rule 424(b) of the Rules and Regulations, including any information deemed
to be part of such Registration Statement as of the Effective Time pursuant
to paragraph (b) of Rule 430A of the Rules and Regulations; and
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"Prospectus" means such final prospectus, as first filed pursuant to
Rule 424(b) of the Rules and Regulations.
Reference made herein to any Preliminary Prospectus, the Prospectus or
any other information furnished by the Company to the Remarketing Agent for
distribution to investors in connection with the Remarketing (the "Remarketing
Materials") shall be deemed to refer to and include any documents incorporated
by reference therein pursuant to Item 12 of Form S-3 under the Securities Act as
of the date of such Preliminary Prospectus or the Prospectus, as the case may
be, or, in the case of Remarketing Materials, referred to as incorporated by
reference therein, and any reference to any amendment or supplement to any
Preliminary Prospectus, the Prospectus or the Remarketing Materials shall be
deemed to refer to and include any document filed under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), after the date of such Preliminary
Prospectus or the Prospectus incorporated by reference therein pursuant to Item
12 of Form S-3 or, if so incorporated, the Remarketing Materials, as the case
may be; and any reference to any amendment to the Registration Statement shall
be deemed to include any annual report of the Company filed with the Commission
pursuant to Section 13(a) or 15(d) of the Exchange Act after the Effective Time
that is incorporated by reference in the Registration Statement.
(c) The Commission has not issued an order preventing or suspending the
use of the Registration Statement, any Preliminary Prospectus, the Prospectus or
the Remarketing Materials.
(d) The Registration Statement, as of the Effective Date, conformed
(and the Prospectus and any further amendments or supplements to the
Registration Statement or the Prospectus, when they become effective or are
filed with the Commission, as the case may be, will conform) in all respects to
the requirements of the Securities Act and the Rules and Regulations, and the
Registration Statement, the Prospectus and the Remarketing Materials do not and
will not, as of the Effective Date (as to the Registration Statement and any
amendment thereto), as of the applicable filing date (as to the Prospectus and
any amendment or supplement thereto) and as of the Commencement Date,
Remarketing Date and Purchase Contract Settlement Date (as to any Remarketing
Materials) contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading; provided that no representation and warranty is made as
to the statement of eligibility and qualification on Form T-1 of the Indenture
Trustee under the Trust Indenture Act, or as to information contained in or
omitted from the Registration Statement, the Prospectus or the Remarketing
Materials in reliance upon and in conformity with written information furnished
to the Company by the Remarketing Agent specifically for inclusion therein. The
Indenture conforms in all material respects to the requirements of the Trust
Indenture Act and the applicable rules and regulations thereunder.
(e) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may be,
conformed in all material respects to the requirements of the Securities Act or
the Exchange Act, as applicable, and the rules and regulations of the Commission
thereunder, and none of such documents contained any untrue statement of a
material fact or omitted to state a material fact required to be stated therein
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or necessary to make the statements therein not misleading; and any further
documents so filed and incorporated by reference in the Prospectus, when such
documents become effective or are filed with Commission, as the case may be,
will conform in all material respects to the requirements of the Securities Act
or the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder and will not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading.
(f) Subsequent to the date of the latest consolidated financial
statements included or incorporated by reference in the Prospectus or in any
Remarketing Materials, there has not been any material adverse change in the
financial position or results of operations of the Company and its subsidiaries
taken as a whole, except in each case as set forth in or contemplated by the
Prospectus or any Remarketing Materials.
(g) The certificate delivered pursuant to paragraph (e) of Section 6
hereof in connection with the issuance and sale of the Remarketed Notes was on
the dates on which it was delivered, or will be on the dates on which it is to
be delivered, in all material respects true and complete.
SECTION 4. FEES.
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For the performance of its services as Remarketing Agent hereunder, the
Remarketing Agent shall retain from the proceeds of the Remarketing an amount
equal to [25 basis points (.25%)] of the purchase price of the Remarketed Notes.
SECTION 5. COVENANTS OF THE COMPANY.
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The Company covenants and agrees as follows:
(a) (1) To prepare any registration statement or prospectus, if
required, in connection with the Remarketing, in a form approved by the
Remarketing Agent and to file any such prospectus pursuant to the Securities Act
within the period required by the Rules and Regulations;
(2) to advise the Remarketing Agent, promptly after it
receives notice thereof, of the time when any amendment to the Registration
Statement has been filed or becomes effective or any supplement to the
Prospectus or any amended Prospectus has been filed and to furnish the
Remarketing Agent with copies thereof;
(3) to file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to
the date of the Prospectus and for so long as the delivery of a prospectus is
required in connection with the offering or sale of the Remarketed Notes;
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(4) to advise the Remarketing Agent, promptly after it
receives notice thereof, of the issuance by the Commission of any stop order or
of any order preventing or suspending the use of the Prospectus, of the
suspension of the qualification of any of the Remarketed Notes for offering or
sale in any jurisdiction, of the initiation or threatening of any proceeding for
any such purpose, or of any request by the Commission for the amending or
supplementing of the Registration Statement or the Prospectus or for additional
information, and, in the event of the issuance of any stop order or of any order
preventing or suspending the use of any Prospectus or suspending any such
qualification, to use promptly its best efforts to obtain its withdrawal.
(b) To furnish promptly to the Remarketing Agent and to counsel to the
Remarketing Agent a signed copy (or true conformed copy) of the Registration
Statement as originally filed with the Commission, and each amendment thereto
filed with the Commission, including all consents and exhibits filed therewith.
(c) To deliver promptly to the Remarketing Agent in New York City such
number of the following documents as the Remarketing Agent shall request (i)
conformed copies of the Registration Statement as originally filed with the
Commission and each amendment thereto (in each case excluding exhibits other
than this Agreement and the Indenture); (ii) the Prospectus and any amended or
supplemented Prospectus; (ii) any document incorporated by reference in the
Prospectus (excluding exhibits thereto); and (iv) any Remarketing Materials;
and, if the delivery of a prospectus is required at any time in connection with
the Remarketing and if at such time any event shall have occurred as a result of
which the Prospectus as then amended or supplemented would include any untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made when such Prospectus is delivered, not misleading, or if
for any other reason it shall be necessary during such same period to amend or
supplement the Prospectus or to file under the Exchange Act any document
incorporated by reference in the Prospectus in order to comply with the
Securities Act or the Exchange Act, to notify the Remarketing Agent and, upon
its request, to file such document and to prepare and furnish without charge to
the Remarketing Agent and to any dealer in securities as many copies as the
Remarketing Agent may from time to time request of an amended or supplemented
Prospectus which will correct such statement or omission or effect such
compliance; provided that the expense of preparing and filing any such amendment
or supplement (i) which is necessary in connection with such a delivery of a
prospectus more than nine months after the Remarketing Date or (ii) which
relates solely to the activities of the Remarketing Agent shall be borne by the
Remarketing Agent.
(d) To file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the Prospectus
that is required by the Securities Act or requested by the Commission.
(e) Prior to filing with the Commission (i) any amendment to the
Registration Statement or supplement to the Prospectus or any document
incorporated by reference in the Prospectus or (ii) any Prospectus pursuant to
Rule 424 of the Rules and Regulations, to furnish a copy thereof to the
Remarketing Agent and counsel to the Remarketing Agent; and not to file any such
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amendment or supplement which shall be reasonably objected to in writing by the
Remarketing Agent promptly after reasonable notice.
(f) As soon as practicable, but in any event not later than 15 months,
after the Effective Date of the Registration Statement, to make "generally
available to its security holders" an "earnings statement" (which need not be
audited) covering a period of at least twelve months beginning after the
Effective Date which will satisfy the provisions of Section 11(a) of the
Securities Act and the Rules and Regulations (including, at the option of the
Company, Rule 158). The terms "generally available to its security holders" and
"earnings statement" shall have the meanings set forth in Rule 158 of the Rules
and Regulations.
(g) To take such action as the Remarketing Agent may reasonably
request in order to qualify the Remarketed Notes for offer and sale under the
securities or "blue sky" laws of such jurisdictions as the Remarketing Agent may
reasonably request; provided that the Company shall not be required to qualify
as a foreign corporation in any State, to consent to service of process in any
State other than with respect to claims arising out of the offering or sale of
the Remarketed Notes, or to meet any other requirement in connection with this
paragraph (g) deemed by the Company to be unduly burdensome.
(h) To pay (1) the costs incident to the preparation and printing of
the Registration Statement, Prospectus and any Remarketing Materials and any
amendments or supplements thereto; (2) the costs of distributing the
Registration Statement, Prospectus and any Remarketing Materials and any
amendments or supplements thereto; (3) the fees and expenses of qualifying the
Remarketed Notes under the securities laws of the several jurisdictions as
provided in Section 5(g) and of preparing, printing and distributing a Blue Sky
Memorandum (including related fees and expenses of counsel to the Remarketing
Agent); (4) all other costs and expenses incident to the performance of the
obligations of the Company, hereunder; and (5) the reasonable fees and expenses
of counsel to the Remarketing Agent in connection with their duties hereunder.
SECTION 6. CONDITIONS TO THE REMARKETING AGENT'S OBLIGATIONS.
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The obligations of the Remarketing Agent hereunder are subject to the
following conditions:
(a) The Prospectus shall have been timely filed with the Commission;
no stop order suspending the effectiveness of the Registration Statement or any
part thereof or suspending the qualification of the Indenture shall have been
issued and no proceeding for that purpose shall have been initiated or
threatened by the Commission; and any request of the Commission for inclusion of
additional information in the Registration Statement or the Prospectus or
otherwise shall have been complied with.
(b) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, (i) there shall not have been any
material adverse change in the financial position or results of operations of
the Company and its subsidiaries taken as a whole, that, in the judgment of the
Remarketing Agent, materially impairs the investment quality of the Notes, in
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each case other than as set forth in or contemplated by the Registration
Statement or Prospectus.
(c) The representations and warranties of the Company contained
herein shall be true and correct in all material respects on and as of the
Remarketing Date, and the Company shall have performed in all material respects
all covenants and agreements herein contained to be performed on its part at or
prior to the Remarketing Date.
(d) The Company shall have furnished to the Remarketing Agent a
certificate, dated the Remarketing Date, of [the President or a Vice President
and a financial or accounting officer of the Company] stating that to the best
of their knowledge after reasonable investigation:
(i) no order suspending the effectiveness of the Registration
Statement or prohibiting the sale of the Remarketed Notes is in effect, and no
proceedings for such purpose are pending before or, to the knowledge of such
officers, threatened by the Commission;
(ii) the representations and warranties of the Company in
Section 3 are true and correct in all material respects on and as of the
Remarketing Date and the Company has performed in all material respects all
covenants and agreements contained herein to be performed on its part at or
prior to the Remarketing Date;
(iii) the Registration Statement, as of its Effective Date,
and the Prospectus and the Remarketing Materials, as of their respective dates,
did not contain any untrue statement of a material fact and did not omit to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading.
(e) On the Remarketing Date, the Remarketing Agent shall have
received a letter addressed to the Remarketing Agent and dated such date, in
form and substance satisfactory to the Remarketing Agent, of Pricewaterhouse-
Coopers LLP, or such other firm of nationally recognized independent public
accountants satisfactory to the Remarketing Agent, containing statements and
information of the type ordinarily included in accountants' "comfort letters"
with respect to certain financial information contained in the Prospectus and in
the Remarketing Materials.
(f) Counsel to the Company shall have furnished to the Remarketing
Agent its opinion letter or opinion letters, as the case may be, addressed to
the Remarketing Agent and dated the Remarketing Date, in form and substance
satisfactory to the Remarketing Agent as set forth as Exhibit A hereto.
[(g) On or after the execution and delivery of this Agreement, no
downgrading shall have occurred in the rating accorded the Company's debt
securities by any "nationally recognized statistical rating organization", as
that term is defined by the Commission for purposes of Rule 436(g)(2) under the
Securities Act.]
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SECTION 7. INDEMNIFICATION AND CONTRIBUTION.
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(a) The Company and Capital Funding agree that they will jointly and
severally indemnify and hold harmless the Remarketing Agent and each person, if
any, who controls the Remarketing Agent within the meaning of Section 15 of the
Securities Act, against any and all loss, expense, claim, damage or liability to
which, jointly or severally, the Remarketing Agent or such controlling person
may become subject, under the Securities Act or otherwise, insofar as such loss,
expense, claim, damage or liability (or actions in respect thereof) arises out
of or is based upon any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, the Prospectus, the
Remarketing Materials or any amendment or supplement to any thereof, or arises
out of or is based upon the omission or alleged omission to state therein any
material fact required to be stated therein or necessary to make the statements
therein not misleading; and, except as hereinafter in this Section provided, the
Company and Capital Funding agree to reimburse the Remarketing Agent and each
person who controls the Remarketing Agent as aforesaid for any reasonable legal
or other expenses incurred by the Remarketing Agent or such controlling person
in connection with investigating or defending any such loss, expense, claim,
damage or liability; provided, however, that the Company and Capital Funding
shall not be liable in any such case to the extent that any such loss, expense,
claim, damage or liability arises out of or is based on an untrue statement or
alleged untrue statement or omission or alleged omission made in any such
document in reliance upon, and in conformity with, written information furnished
to Capital Funding or the Company by or through the Remarketing Agent expressly
for use in any such document or arises out of, or is based on, statements in or
omissions from that part of the Registration Statement which shall constitute
the [Statement of Eligibility under the Trust Indenture Act of the Trustee under
the Indenture]; and provided further, that with respect to any untrue statement
or alleged untrue statement or omission or alleged omission made in any
prospectus or supplement, the indemnity agreement contained in this subsection
(a) shall not inure to the benefit of the Remarketing Agent (or to the benefit
of any person controlling the Remarketing Agent), if a copy of the Prospectus
(not including documents incorporated by reference therein) was not sent or
given to such person at or prior to the written confirmation of the sale of the
Remarketed Notes to such person.
(b) The Remarketing Agent agrees that it will indemnify and hold
harmless the Company and Capital Funding, their officers and directors, and each
of them, and each person, if any, who controls the Company and Capital Funding
within the meaning of Section 15 of the Securities Act, against any loss,
expense, claim, damage or liability to which it or they may become subject,
under the Securities Act or otherwise, insofar as such loss, expense, claim,
damage or liability (or actions in respect thereof) arises out of or is based on
any untrue statement or alleged untrue statement of any material fact contained
in the Registration Statement, the Prospectus, the Remarketing Materials or any
amendment or supplement to any thereof, or arises out of or is based upon the
omission or alleged omission to state therein any material fact required to be
stated therein or necessary to make the statements therein not misleading, in
each case to the extent, and only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in any such
document in reliance upon, and in conformity with, written information furnished
to Capital Funding or the Company by or through the Remarketing Agent expressly
for use in any such document; and, except as hereinafter in this Section
provided, the Remarketing Agent agrees to reimburse the Company and Capital
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Funding, their officers and directors, and each of them, and each person, if
any, who controls the Company and Capital Funding within the meaning of Section
15 of the Securities Act, for any reasonable legal or other expenses incurred by
it or them in connection with investigating or defending any such loss, expense,
claim, damage or liability.
(c) Upon receipt of notice of the commencement of any action against an
indemnified party, the indemnified party shall, with reasonable promptness, if a
claim in respect thereof is to be made against an indemnifying party under its
agreement contained in this Section 7, notify such indemnifying party in writing
of the commencement thereof; but the omission so to notify an indemnifying party
shall not relieve it from any liability which it may have to the indemnified
party otherwise than under its agreement contained in this Section 7. In the
case of any such notice to an indemnifying party, it shall be entitled to
participate at its own expense in the defense, or if it so elects, to assume the
defense, of any such action, but, if it elects to assume the defense, such
defense shall be conducted by counsel chosen by it and satisfactory to the
indemnified party and to any other indemnifying party, defendant in the suit. In
the event that any indemnifying party elects to assume the defense of any such
action and retain such counsel, the indemnified party shall bear the fees and
expenses of any additional counsel retained by it. No indemnifying party shall
be liable in the event of any settlement of any such action effected without its
consent except as provided in Section 7(e) hereof. Each indemnified party agrees
promptly to notify each indemnifying party of the commencement of any litigation
or proceedings against it in connection with the issue and sale of the
Remarketed Notes.
(d) If the Remarketing Agent or any person entitled to indemnification
by the terms of subsection (a) of this Section 7 shall have given notice to the
Company and Capital Funding of a claim in respect thereof pursuant to Section
7(c) hereunder, and if such claim for indemnification is thereafter held by a
court to be unavailable for any reason other than by reason of the terms of this
Section 7 or if such claim is unavailable under controlling precedent, the
Remarketing Agent or such person shall be entitled to contribution from the
Company and Capital Funding for liabilities and expenses, except to the extent
that contribution is not permitted under Section 11(f) of the Securities Act. In
determining the amount of contribution to which the Remarketing Agent or such
person is entitled, there shall be considered the relative benefits received by
the Remarketing Agent or such person and the Company and Capital Funding from
the offering of the Remarketed Notes that were the subject of the claim for
indemnification (taking into account the portion of the proceeds realized by
each), the Remarketing Agent or person's relative knowledge and access to
information concerning the matter with respect to which the claim was asserted,
the opportunity to correct and prevent any statement or omission, and any other
equitable considerations appropriate under the circumstances. The Company and
Capital Funding and the Remarketing Agent agree that it would not be equitable
if the amount of such contribution were determined by pro rata or per capita
allocation.
(e) No indemnifying party shall, without the prior written consent of
the indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 7 (whether or not the indemnified parties are actual or
potential parties thereto), unless such settlement, compromise or consent (i)
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includes an unconditional release of each indemnified party and all liability
arising out of such litigation, investigation, proceeding or claim, and (ii)
does not include a statement as to or an admission of fault, culpability or the
failure to act by or on behalf of any indemnified party.
(f) The indemnity and contribution provided for in this Section 7 and
the representations and warranties of the Company, Capital Funding and the
Remarketing Agent shall remain operative and in full force and effect regardless
of (i) any investigation made by or on behalf of the Remarketing Agent or any
person controlling the Remarketing Agent, the Company, its directors or
officers, Capital Funding or any person controlling Capital Funding, (ii)
acceptance of any Remarketed Notes and payment therefor under this Agreement,
and (iii) any termination of this Agreement.
SECTION 8. RESIGNATION AND REMOVAL OF THE REMARKETING AGENT.
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The Remarketing Agent may resign and be discharged from its duties and
obligations hereunder, and the Company may remove the Remarketing Agent, by
giving 15 days' prior written notice, in the case of a resignation, to the
Company, DTC and the Indenture Trustee and, in the case of a removal, the
removed Remarketing Agent, DTC and the Indenture Trustee; provided however, that
no such resignation nor any such removal shall become effective until the
Company shall have appointed at least one nationally recognized broker-dealer as
successor Remarketing Agent and such successor Remarketing Agent shall have
entered into a with the Company, in which it shall have
agreed to conduct the Remarketing in accordance with the Remarketing Procedures.
In any such case, the Company will use its reasonable efforts to
appoint a successor Remarketing Agent and enter into such a with such person as soon as reasonably practicable. The provisions of
Sections 4 and 7 shall survive the resignation or removal of any Remarketing
Agent pursuant to this Agreement.
SECTION 9. DEALING IN THE REMARKETED NOTES.
-------------------------------
The Remarketing Agent, when acting as a Remarketing Agent or in its
individual or any other capacity, may, to the extent permitted by law, buy,
sell, hold and deal in any of the Remarketed Notes. The Remarketing Agent may
exercise any vote or join in any action which any beneficial owner of Remarketed
Notes may be entitled to exercise or take pursuant to the Indenture with like
effect as if it did not act in any capacity hereunder. The Remarketing Agent, in
its individual capacity, either as principal or agent, may also engage in or
have an interest in any financial or other transaction with the Company as
freely as if it did not act in any capacity hereunder.
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SECTION 10. REMARKETING AGENT'S PERFORMANCE; DUTY OF CARE.
---------------------------------------------
The duties and obligations of the Remarketing Agent shall be determined
solely by the express provisions of this Agreement and the Indenture. No implied
covenants or obligations of or against the Remarketing Agent shall be read into
this Agreement or the Indenture. In the absence of bad faith on the part of the
Remarketing Agent, the Remarketing Agent may conclusively rely upon any document
furnished to it, which purports to conform to the requirements of this Agreement
or the Indenture as to the truth of the statements expressed in any of such
documents. The Remarketing Agent shall be protected in acting upon any document
or communication reasonably believed by it to have been signed, presented or
made by the proper party or parties. The Remarketing Agent, acting under this
Agreement, shall incur no liability to the Company or to any holder of
Remarketed Senior Deferrable Notes in its individual capacity or as Remarketing
Agent for any action or failure to act, on its part in connection with a
Remarketing or otherwise, except if such liability is judicially determined to
have resulted from the gross negligence or willful misconduct on its part.
SECTION 11. TERMINATION.
-----------
This Agreement shall terminate as to the Remarketing Agent on the
effective date of the resignation or removal of the Remarketing Agent pursuant
to Section 8. In addition, this Agreement may be terminated (A) by the Company
by notifying the Remarketing Agent at any time before the time when the
Remarketed Notes are first generally offered by the Remarketing Agent to dealers
by letter or telegram, or (B) by the Remarketing Agent by notifying the Company
at or prior to 10:00 a.m. (New York City time) on the Remarketing Date by letter
or telegram if,
(a) in the judgement of the Remarketing Agent the sale and delivery
of the Remarketed Notes is rendered impracticable or inadvisable because:
(1) there has been any suspension or limitation of trading in
securities generally on the New York Stock Exchange, or any setting of minimum
or maximum prices for trading on such exchange, or any suspension or limitation
of trading of any securities of the Company or Capital Funding on any exchange
or in the over-the-counter market; or a general banking moratorium has been
declared by Federal or New York authorities;
(2) any event shall have occurred or shall exist which makes
untrue or incorrect in any material respect any statement or information
contained in the Registration Statement or Prospectus or which is not reflected
in the Registration Statement or Prospectus but should be reflected therein in
order to make the statements or information contained therein not misleading in
any material respect, and such untrue or incorrect statement or information is
not corrected in an amendment or supplement to the Registration Statement or
Prospectus, or
(b) prior to that time, any of the events described in Sections 6(b)
[or (g)] shall have occurred.
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If this Agreement is terminated pursuant to any of the provisions
hereof, except as otherwise provided herein, the Company shall not be under any
liability to the Remarketing Agent and the Remarketing Agent shall not be under
any liability to the Company, except that (a) if this Agreement is terminated by
the Remarketing Agent because of any failure or refusal on the part of the
Company to comply with the terms or to fulfill any of the conditions of this
Agreement, the Company will reimburse the Remarketing Agent for all of its
out-of-pocket expenses (including the fees and disbursements of its counsel)
reasonably incurred by it, and (b) if the Remarketing Agent failed or refused to
purchase the Remarketed Notes hereunder, without some reason sufficient
hereunder to justify the cancellation or termination of its obligations
hereunder, the Remarketing Agent shall not be relieved of liability to the
Company for damages occasioned by its default.
SECTION 12. NOTICES.
-------
All statements, requests, notices and agreements hereunder shall be in
writing, and:
(a) if to the Remarketing Agent, shall be delivered or sent by mail,
telex or facsimile transmission to _____________________ Attention:____________;
(b) if to the Company, shall be delivered or sent by mail, telex or
facsimile transmission to ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇, Attention: Treasurer. (Fax: (▇▇▇) ▇▇▇-▇▇▇▇).
Any such statements, requests, notices or agreements shall take effect
at the time of receipt thereof.
SECTION 13. PERSONS ENTITLED TO BENEFIT OF AGREEMENT.
----------------------------------------
This Agreement shall inure to the benefit of and be binding upon the
Remarketing Agent, the Company, and their respective successors. This Agreement
and the terms and provisions hereof are for the sole benefit of only those
persons, except that (x) the representations, warranties, indemnities and
agreements of the Company contained in this Agreement shall also be deemed to be
for the benefit of the Remarketing Agent and the person or persons, if any, who
control the Remarketing Agent within the meaning of Section 15 of the Securities
Act and (y) the indemnity agreement of the Remarketing Agent contained in
Section 7(b) of this Agreement shall be deemed to be for the benefit of the
Company's directors and officers who sign the Registration Statement and any
person controlling the Company within the meaning of Section 15 of the
Securities Act. Nothing contained in this Agreement is intended or shall be
construed to give any person, other than the persons referred to herein, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision contained herein.
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SECTION 14. SURVIVAL.
--------
The respective indemnities, representations, warranties and agreements
of the Company and the Remarketing Agent contained in this Agreement or made by
or on behalf of them, respectively, pursuant to this Agreement, shall survive
the Remarketing and shall remain in full force and effect, regardless of any
investigation made by or on behalf of any of them or any person controlling any
of them.
SECTION 15. GOVERNING LAW.
-------------
This Agreement shall be governed by, and construed in accordance with,
the laws of New York.
SECTION 16. COUNTERPARTS.
------------
This Agreement may be executed in one or more counterparts and, if
executed in more than one counterpart, the executed counterparts shall each be
deemed to be an original but all such counterparts shall together constitute one
and the same instrument.
SECTION 17. HEADINGS.
--------
The headings herein are inserted for convenience of reference only and
are not intended to be part of, or to affect the meaning or interpretation of,
this Agreement. If the foregoing correctly sets forth the agreement between the
Company and the Remarketing Agent, please indicate your acceptance in the space
provided for that purpose below.
If the foregoing correctly sets forth the agreement between the Company
and the Remarketing Agent, please indicate your acceptance in the space provided
for that purpose below.
Very truly yours,
PP&L RESOURCES, INC.
By:_______________________________
Title:
Accepted:
________________________________________
By:_____________________________________
Authorized Representative
