3f17_REDACTED Wells Amended & Restated LOC Agreement (Sweetwater 94).pdf

AMENDED AND RESTATED LETTER OF CREDIT AGREEMENT
LEGAL26 I 72129.1
dated March 27,2013
by and among
PACIFICORP,
as the "Borrower"
and
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as the "LC Issuing Bank"
$21,260,000
Sweetwater County, Wyoming
Pollution Control Revenue Refunding Bonds,
Series 1994
(PacifiCorp Project)
Table of Contents
ARTICLE I DEFINITIONS ................................................................................................. 2
Section 1.01
Section 1.02
Certain Defined Terms ......................................................................... 2
Relation to Other Documents ............................................................... 3
ARTICLE II AMOUNT AND TERMS OF THE BOND LETTER OF CREDIT ............... 3
Section 2.01
Section 2.02
Section 2.03
Section 2.04
Section 2.05
Section 2.06
The Bond Letter of Credit .................................................................... 3
Term ..................................................................................................... 4
Fees ...................................................................................................... 4
Credit Agreement ................................................................................. 4
Extension of the Expiration Date ......................................................... 5
Further Assurances ............................................................................... 5
ARTICLE III CONDITIONS PRECEDENT ......................................................................... 5
Section 3.01
Section 3.02
Conditions Precedent ........................................................................... 5
Additional Conditions Precedent to Issuance of the Bond Letter
of Credit ............................................................................................... 6
ARTICLE IV MISCELLANEOUS ........................................................................................ 6
Section 4.01
Section 4.02
Section 4.03
Section 4.04
Section 4.05
Section 4.06
Section 4.07
Section 4.08
Section 4.09
Section 4.10
Amendments, Etc ................................................................................. 6
Notices, Etc .......................................................................................... 7
No Waiver; Remedies .......................................................................... 7
Indemnification .................................................................................... 7
No Liability ofthe LC Issuing Ban1e .................................................. 8
Costs, Expenses and Taxes .................................................................. 9
Binding Effect ...................................................................................... 9
Severability .......................................................................................... 9
Governing Law; Waiver of Jury Trial ................................................. 9
OREGON STATE NOTICE .............................................................. 10
Section 4.11 Continuing Obligation ....................................................................... 10
Section 4.12 Immediate Advance ........................................................................... 10
Section 4.13 Drawing a Certification ...................................................................... 10
Section 4.14 Facsimile Documents ......................................................................... 10
Section 4.15 Counterparts ....................................................................................... 10
Section 4.16 USA PATRIOT ACT NOTIFICATION ........................................... 10
EXHIBIT A FORM OF IRREVOCABLE LETTER OF CREDIT
EXHIBIT B FORM OF OPINION OF COUNSEL TO BORROWER
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AMENDED AND RESTATED LETTER OF CREDIT AGREEMENT
THIS AMENDED AND RESTATED LETTER OF CREDIT AGREEMENT, dated
March 27,2013 (this "Agreement"), by and between PACIFICORP, an Oregon corporation (the
"Borrower"), and WELLS FARGO BANK, NATIONAL ASSOCIATION, as the issuer of the
hereinafter described Bond Letter of Credit (the "LC Issuing BanR'). Certain terms used herein
are defined in Article I of this Agreement.
RECITALS:
WHEREAS, the Issuer has heretofore issued the Bonds pursuant to the Indenture
and the Issuer and the Borrower have entered into the Loan Agreement pertaining to the Bonds;
and
WHEREAS, under the Loan Agreement the Borrower has agreed to cause the
Bonds to be secured by an irrevocable direct pay letter of credit; and
WHEREAS, the LC Issuing Bank issued the Bond Letter of Credit to secure the
Bonds on November 19, 2008, pursuant to the Bond Letter of Credit Agreement dated November
19,2008 (the "Original Letter a/Credit Agreement") and subject to the terms set forth in that
certain Credit Agreement dated as of October 23, 2007, as amended by that certain First
Amendment dated April 15,2009, among the Borrower, various banks identified therein, Union
Bank of California, N.A., Administrative Agent, and The Royal Bank of Scotland pic, as
Syndication Agent; and
WHEREAS, the Borrower previously requested that the Bond Letter of Credit
remain outstanding and be issued under, and be subject to, the terms of that certain Amended and
Restated Credit Agreement, dated as of July 6, 2006, as amended by the First Amendment to the
same, dated as of April 15, 2009, and the Second Amendment to the same, dated as of January 6,
2012, among the Borrower, the banks listed on the signature pages thereto, the Administrative
Agent and The Royal Bank of Scotland pic, as Syndication Agent (the "Replacement Credit
Agreement"), and the Borrower and LC Issuing Bank entered into that certain First Amendment
to Letter of Credit Agreement dated as of June 22, 2012 (the "First Amendment" and together
with the Original Letter of Credit Agreement, the "Original Agreement"); and
WHEREAS, the Borrower has now requested that the Bond Letter of Credit
remain outstanding and be issued under, and be subject to, the terms of the Credit Agreement (as
hereinafter defined) in lieu of the Replacement Credit Agreement and that the Expiration Date of
the Bond Letter of Credit be extended to March 27,2015; and
WHEREAS, the parties have agreed to amend and restate the Original Letter of
Credit Agreement accordingly as more fully set forth below; and
NOW, THEREFORE, in consideration of the premises, including the benefits to
be realized by Borrower as above described, and in order to induce the LC Issuing Bank to keep
the Bond Letter of Credit outstanding, the parties hereto agree as follows:
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ARTICLE I
DEFINITIONS
Section 1.01 Certain Defined Terms. Unless otherwise defined in this
Agreement, terms defined in the Credit Agreement and in the foregoing recitals shall have the
meanings respectively indicated therein. As used in this Agreement, the following terms shall
have the following meanings (such meanings to be equally applicable to both the singular and
plural forms of the terms defined):
"A Drawing" means a drawing under the Bond Letter of Credit pursuant to Annex A to
the Bond Letter of Credit.
"Administrative Agent" means JPMorgan Chase Bank, N.A., in its capacity as
Administrative Agent under the Credit Agreement, and its successors in such capacity.
"B Drawing" means a drawing under the Bond Letter of Credit pursuant to Annex B to
the Bond Letter of Credit.
"Bond Documents" shall mean (i) the Indenture, (ii) the Loan Agreement, (iii) the
Remarketing Agreement, (iv) this Agreement and (v) any other document executed by the
Borrower in connection with the issuance, reoffering or sale of the Bonds.
"Bond" or "Bonds" shall mean Issuer's $21,260,000 Pollution Control Revenue
Refunding Bonds (PacifiCorp Project), Series 1994.
"Bond Letter of Credit" means the irrevocable direct pay letter of credit issued by the LC
Issuing Bank to the Trustee to secure payment of the Bonds, in the form of Exhibit A attached
hereto.
"Business Day" has the meaning assigned thereto in the Bond Letter of Credit.
"C Drawing" means a drawing under the Bond Letter of Credit pursuant to Annex C to
the Bond Letter of Credit.
"Credit Agreement" means that certain Credit Agreement dated as of March 27, 2013,
among the Borrower, the lenders and letter of credit issuers named therein, and JP Morgan Chase
Bank, N.A., as administrative agent and swing line lender, as amended or supplemented from
time to time.
"D Drawing" means a drawing under the Bond Letter of Credit pursuant to Annex D to
the Bond Letter of Credit.
"Expiration Date" shall have the meaning assigned to such term in the Bond Letter of
Credit.
"Indenture" shall mean that certain Trust Indenture dated as of November 1, 1994, between
the Issuer and the Trustee, as amended and restated by that certain First Supplemental Trust
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Indenture dated as of October 1, 2008, between the Issuer and the Trustee, and as now or hereafter
amended or supplemented from time to time.
"Issuer" shall mean Sweetwater County, Wyoming, and its lawful successors and assigns.
"LC Issuing Bank Fee Letter" means that certain letter agreement dated as of February 19,
2013, among the LC Issuing Bank, JPMorgan Chase Bank, N.A., Barclays Bank PLC and the
Borrower.
"Loan Agreement" shall mean that certain Loan Agreement dated as of November 1, 1994,
between the Borrower and the Issuer, as amended and restated by that certain Second Supplemental
Loan Agreement dated as of October 1, 2008, between the Borrower and the Issuer, and as now or
hereafter amended or supplemented from time to time.
"Reissuance Date" means March 27, 2013.
"Remarketing Agent" means the placement or remarketing agent at the time serving as
such under the Remarketing Agreement and designated as the Remarketing Agent for purposes
of the Indenture. The current Remarketing Agent is Morgan Stanley & Co., LLC.
"Remarketing Agreement" means that certain Remarketing Agreement dated as of
November 18, 2008 between the Borrower and the Remarketing Agent, as now or hereafter
amended or supplemented, or if such Remarketing Agreement shall be terminated, then such
other agreement which may from time to time be entered into with any Remarketing Agent with
respect to the remarketing or placement of the Bonds.
"Reoffering Circular" means the Reoffering Circular dated November 11, 2008 relating to
the Bonds, as supplemented or otherwise amended to the date hereof, together with the documents
incorporated therein by reference.
"Trustee" means The Bank of New York Mellon Trust Company, N.A., or any successor
trustee under the Indenture.
Section 1.02 Relation to Other Documents. Nothing in this Agreement shall be
deemed to amend, or relieve the Borrower of any of its obligations under, the Credit Agreement
or any related document. To the extent any provision of this Agreement conflicts with any
provision of the Credit Agreement or any other Related Document to which the Borrower and
the LC Issuing Bank are parties, the provisions of this Agreement shall control as between the
Borrower and the LC Issuing Bank.
ARTICLE II
AMOUNT AND TERMS OF THE BOND LETTER OF CREDIT
Section 2.01 The Bond Letter of Credit. Subject to the terms and conditions of
this Agreement, the LC Issuing Bank agrees that the Bond Letter of Credit shall remain outstanding
and, as of the Reissuance Date, shall be issued pursuant to the Credit Agreement. The Bond Letter
of Credit is currently held by the Trustee as beneficiary in the original stated amount of
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$21,595,501 consisting of (i) $21,260,000 to pay principal of the Bonds, plus (ii) 48 days'
interest on said principal amount computed at the rate of twelve percent (12%) per annum
calculated on the basis of a 365 day year and actual days elapsed, in the amount of $335,501.
Section 2.02
Bond Letter of Credit.
Term. The Bond Letter of Credit will expire as provided in the
Section 2.03 Fees. The Borrower hereby agrees to pay to the LC Issuing Bank
fees in the amounts and on the dates as provided in Credit Agreement and the LC Issuing Bank
Fee Letter.
Section 2.04 Credit Agreement. (a) The Borrower represents and warrants that
the Credit Agreement has been duly executed and delivered by all parties thereto on or prior to
the date hereof. The Borrower has requested that the Bond Letter of Credit remain outstanding
pursuant to the terms and conditions of the Credit Agreement, including, without limitation,
Section 2.04 thereof. Subject to the terms and conditions of this Agreement, the LC Issuing
Bank agrees that the Bond Letter of Credit shall remain outstanding and, as of the Reissuance
Date, shall be issued under, and shall be subject to the terms and conditions of, the Credit
Agreement, as supplemented by this Agreement.
(b) The Borrower acknowledges and agrees that for all purposes hereunder and under
the Credit Agreement, including without limitation, for purposes of making demand for payment
under Section 2.04( d) of the Credit Agreement, (1) the Borrower shall be deemed to have notice
of any A Drawing or B Drawing on the Bond Letter of Credit (and notice of demand for
payment) on the Business Day preceding such drawing and (2) the Borrower shall be deemed to
have notice of any C Drawing or D Drawing on the Bond Letter of Credit (and notice of demand
for payment) by 10:00 A.M. (New York City time) on the date of such drawing. The LC Issuing
Bank and the Borrower further agree that no further demands for payment of any Reimbursement
Amount or interest thereon shall be required under the Credit Agreement and that such
Reimbursement Amount shall be paid directly to the LC Issuing Bank as provided in Section
2. 17(f) of the Credit Agreement in accordance with such payment instructions as the LC Issuing
Bank shall provide to the Borrower from time to time.
(c) The Borrower hereby represents and warrants that after the issuance of the Bond
Letter of Credit, (i) the Outstanding Credits do not exceed the Commitments currently scheduled
to be in effect until the Termination Date, (ii) that portion of the LC Outstandings arising from
Letters of Credit issued by the LC Issuing Bank are less than $320,000,000 and (iii) the LC
Outstandings do not exceed $600,000,000.
(d) The Borrower hereby further represents and warrants that:
(i) Immediately prior to and after the issuance of the Bond Letter of Credit,
no Default shall have occurred and be continuing under the Credit Agreement;
(ii) The representations and warranties of the Borrower contained in the Bond
Documents and the Credit Agreement are correct on and as of the date of issuance of the
Bond Letter of Credit, before and after giving effect to such issuance, as though made on
and as of such date;
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(iii) No petition by or against the Borrower has at any time been filed under the
United States Bankruptcy Code or under any similar act; and
(iv) No event has occurred and is continuing, or would result from the issuance
of the Bond Letter of Credit or the execution of this Agreement or the Bond Documents,
which constitutes an Event of Default under the Credit Agreement or would constitute an
Event of Default under the Credit Agreement but for the requirement that notice be given
or time elapse or both.
Section 2.05 Extension of the Expiration Date. If the LC Issuing Bank intends to
elect not to extend the then current Expiration Date set forth in the Bond Letter of Credit, the LC
Issuing Bank shall provide written notice to the Borrower of such intention on or before the date
that is sixty (60) days prior to such Expiration Date. In addition, if the LC Issuing Bank makes
such election to not extend the scheduled Expiration Date, the LC Issuing Bank shall provide
written notice of the LC Issuing Bank's election to the Trustee on or before the date that is forty­
five (45) days prior to such Expiration Date. The determination whether to extend the Expiration
Date shall be in the independent absolute discretion of LC Issuing Bank.
Section 2.06 Further Assurances. The Borrower shall take such actions, and
shall timely request the Trustee to take such actions, as the LC Issuing Bank may reasonably
request to evidence the Trustee's obligation to make payments on Pledged Bonds (as defined in
the Indenture) to the LC Issuing Bank, including, without limitation, executing and delivering a
pledge agreement in customary form and/or obtaining CUSIP numbers for such Pledged Bonds.
ARTICLE III
CONDITIONS PRECEDENT
Section 3.01 Conditions Precedent. The obligation of the LC Issuing Bank to
issue the Bond Letter of Credit under the Credit Agreement is subject to the satisfaction of each
of the conditions precedent in Section 3.01 of the Credit Agreement and in clauses (i) and (ii) of
Section 3.02 of the Credit Agreement and the other conditions described below and to the
payment by Borrower of all of the costs, expenses and fees due and payable under the Credit
Agreement and the LC Issuing Bank Fee Letter:
(a) The LC Issuing Bank shall have received fully executed copies of any
Bond Documents that it shall have requested from the Borrower prior to the Reissuance
Date.
(b) The Bonds shall have been duly reoffered and sold pursuant to the
Remarketing Agreement.
(c) The representations and warranties contained in the Bond Documents shall
be true in all material respects on the Reissuance Date with the same effect as though
made on and as of that date, and no condition, event or act shall have occurred which
constitutes a Default under the Credit Agreement or, with notice or lapse of time, or both,
would constitute a Default under the Credit Agreement.
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(d) The Issuing Bank shall have received from counsel for the Borrower an
opinion in substantially the form attached as Exhibit B hereto.
(e) All proceedings taken in connection with the execution and delivery of the
Bonds shall be reasonably satisfactory to the Issuing Bank and the Issuing Bank shall
have received copies of such certificates, documents and papers as reasonably requested
in connection therewith, all in form and substance reasonably satisfactory to the Issuing
Bank.
(f) The Borrower shall supply to the Issuing Bank (x) a certificate of the
Secretary or an Assistant Secretary of the Borrower certifying the names and true
signatures of the officers of the Borrower authorized to sign this Agreement and the
related Documents to which it is a party, the Articles of Incorporation and By-Laws of
the Borrower, together with all amendments thereto, all required Governmental
Approvals and resolutions authorizing the Credit Agreement and the Bond Letter of
Credit and (y) a copy of a certificate issued by the Secretary of State of the State of
Oregon issued no more than 30 days preceding the Closing Date, stating that the
Borrower is in good standing in the State of Oregon and copies of certificates issued by
the Secretary of State of the States of Wyoming, Utah and Colorado stating that the
Borrower is authorized to transact business in each respective State.
(g) No law, regulation, ruling or other action of the United States, the State of
California or any political subdivision or Issuer therein or thereof shall be in effect or
shall have occurred, the effect of which would be to prevent the LC Issuing Bank from
fulfilling its obligations under this Agreement.
(h) The Administrative Agent shall have received such other approvals or
documents as the Administrative Agent, the Swingline Lender, any Lender or any LC
Issuing Bank shall have reasonably requested through the Administrative Agent
reasonably in advance of the Reissuance Date.
(i) The LC Issuing Bank shall have been designated as an "LC Issuing Bank"
on Schedule II to the Credit Agreement and the Bond Letter of Credit shall have been
described on Schedule III to the Credit Agreement.
G) If required by the Administrative Agent, the Borrower shall have
provided a Request for Issuance to the Administrative Agent and the LC Issuing Bank as
required pursuant to Section 2.04(a) of the Credit Agreement.
Section 3.02 Additional Conditions Precedent to Issuance of the Bond Letter of
Credit. The obligation of the LC Issuing Bank to issue the Bond Letter of Credit shall be
subject to the further conditions precedent that on the date of the issuance of the Bond Letter of
Credit, the LC Issuing Bank shall have received such other documents, instruments, approvals
and, if requested by the LC Issuing Bank, certified duplicates of executed copies thereof, and
opinions as the LC Issuing Bank may reasonably request.
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ARTICLE IV
MISCELLANEOUS
Section 4.01 Amendments, Etc. No amendment or waiver of any provision of
this Agreement, nor consent to any departure by the Borrower therefrom, shall in any event be
effective unless the same shall be in writing and signed by the LC Issuing Bank and the
Borrower and then such waiver or consent shall be effective only in the specific instance and for
the specific purpose for which given.
Section 4.02 Notices, Etc. All notices and other communications provided for
hereunder shall be in writing (including telecopier communication or other electronic means if
accompanied by telephonic confirmation of receipt) and mailed, telecopied or delivered as
follows:
If to the Borrower, at:
If to the LC Issuing Bank, at:
or, as to each party, at such other address as shall be designated by such party in a written notice
to the other party. All such notices and communications shall, when mailed or telecopied, be
effective when deposited in the mails or telecopied, respectively, addressed as aforesaid, except
that notices to the LC Issuing Bank shall not be effective until received by the LC Issuing Bank.
Section 4.03 No Waiver; Remedies. No failure on the part of the LC Issuing
Bank to exercise, and no delay in exercising, any right hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any right hereunder preclude any other or
further exercise thereof or the exercise of any other right. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
Section 4.04 Indemnification. In addition to the payment of expenses pursuant
hereto, whether or not the transactions contemplated hereby shall be consummated, the Borrower
agrees to indemnify, pay and hold the LC Issuing Bank, and the officers, directors, employees,
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agents, and affiliates the LC Issuing Bank (collectively called the "lndemnitees") harmless from
and against, any and all other liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, claims, costs, expenses and disbursements of any kind or nature whatsoever
(including, without limitation, the reasonable fees and disbursements of counsel for such
Indemnitees in connection with any investigative, administrative or judicial proceeding
commenced or threatened, whether or not such Indemnitees shall be designated a party thereto),
that may be imposed on, incurred by, or asserted against the Indemnitees, in any manner relating
to or arising out of this Agreement or other agreements executed and delivered by the Borrower
in connection herewith or with the Bonds or the use or intended use of the Bond Letter of Credit
or the lack of any requirement that the Bond Letter of Credit be surrendered with each draw
thereon (the "indemnified liabilities"); provided that the Borrower shall have no obligation to an
Indemnitee hereunder with respect to any indemnified liabilities arising from the gross
negligence or willful misconduct of that Indemnitee. To the extent that the undertaking to
indemnify, payor hold harmless set forth in the preceding sentence may be unenforceable
because it is violative of any law or public policy, the Borrower agrees to contribute the
maximum portion that it is permitted to pay and satisfy under applicable law, to the payment and
satisfaction of all indemnified liabilities incurred by the Indemnitees or any of them. The
Borrower shall not be liable for any settlement without its consent. The Borrower hereby further
indemnifies and holds the Indemnified Parties harmless from and against any and all claims,
damages, losses, liabilities, costs or expenses which may be incurred or which may be claimed
against the Indemnified Parties by any person or entity:
(a) by reason of any inaccuracy or alleged inaccuracy in any material respect,
or any untrue statement or alleged untrue statement of any material fact, contained in the
Reoffering Circular or any amendment or supplement thereto, or by reason of the
omission or alleged omission to state therein a material fact necessary to make such
statements, in the light of the circumstances under which they were made, not
misleading; or
(b) by reason of or in connection with the execution, delivery or performance
of the Bonds, the Indenture, or the Loan Agreement, or any transaction contemplated by
the Indenture or the Loan Agreement; or
(c) by reason of or in connection with the execution and delivery or transfer
of, or payment or failure to make payment under, the Bond Letter of Credit; provided,
however, that the Borrower shall not be required to indemnify the LC Issuing Bank
pursuant to this Section 4.04 for any claims, damages, losses, liabilities, costs or expenses
to the extent caused by the LC Issuing Bank's willful failure to make lawful payment
under the Bond Letter of Credit after the presentation to it by the Trustee or a successor
trustee under the Indenture of a draft and certificate strictly complying with the terms and
conditions of the Bond Letter of Credit.
Nothing in this Section 4.04 is intended to limit the Borrower's obligations contained in
Article II. Without prejudice to the survival of any other obligation of the Borrower hereunder,
the indemnities and obligations of the Borrower contained in this Section 4.04 shall survive the
payment in full of amounts payable pursuant to Article II and the termination of the Bond Letter
of Credit.
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Section 4.05 No Liability of the LC Issuing Bank. The Borrower assumes all
risks of the acts or omissions of any beneficiary of the Bond Letter of Credit with respect to its
administration and utilization of the Bond Letter of Credit. Neither the LC Issuing Bank nor any
of its officers or directors shall be liable or responsible for: (a) the use which may be made of
the Bond Letter of Credit or for any acts or omissions of beneficiary in connection therewith; or
(b) the validity, sufficiency or genuineness of documents, or of any endorsement(s) thereon, even
if such documents should in fact prove to be in any or all respects invalid, insufficient, fraudulent
or forged; or (c) payment by the LC Issuing Bank against presentation of documents which, on
their face, appear to comply with the terms of the Bond Letter of Credit, even though such
documents may fail to bear any reference or adequate reference to the Bond Letter of Credit or
(d) any other circumstances whatsoever in making or failing to make payment under the Bond
Letter of Credit in connection with which the LC Issuing Bank would, pursuant to the Uniform
Customs and Practice for Documentary Credits (2007 Revision), International Chamber of
Commerce Publication No. 600, be absolved from liability. In furtherance and not in limitation
of the foregoing, the LC Issuing Bank may accept documents that appear on their face to be in
order, without responsibility for further investigation, regardless of any notice or information to
the contrary.
Section 4.06 Costs, Expenses and Taxes. The Borrower agrees to pay on
demand all costs and expenses in connection with the preparation, execution, delivery, filing,
recording, administration, modification and amendment of this Agreement and any other
documents which may be delivered in connection with this Agreement, including, without
limitation, the reasonable fees and out-of-pocket expenses of counsel for the LC Issuing Bank
and local counsel who may be retained by said counsel, with respect thereto and with respect to
advising the LC Issuing Bank as to its rights and responsibilities under this Agreement. The
Borrower further agrees to pay on demand all costs and expenses (including reasonable counsel
fees and expenses) in connection with (i) the enforcement (whether through negotiations, legal
proceedings or otherwise) of this Agreement and such other documents which may be delivered
in connection with this Agreement, including, without limitation, reasonable counsel fees and
expenses in connection with the enforcement of rights under this Section 4.06, or (ii) any action
or proceeding relating to a court order, injunction, or other process or decree restraining or
seeking to restrain the LC Issuing Bank from paying any amount under the Bond Letter of
Credit. In addition, the Borrower shall pay any and all stamp and other taxes and fees payable or
determined to be payable in connection with the execution, delivery, filing and recording of this
Agreement or the Bond Letter of Credit or any such other documents, and agrees to save the LC
Issuing Bank harmless from and against any and all liabilities with respect to or resulting from
any delay in paying or omission to pay such taxes and fees.
Section 4.07 Binding Effect. This Agreement shall become effective when it
shall have been executed by the Borrower and the LC Issuing Bank and thereafter shall be
binding upon and inure to the benefit of the Borrower, the LC Issuing Bank, and their respective
successors and assigns, except that the Borrower shall not have the right to assign its rights
hereunder or any interest herein without the prior written consent of the LC Issuing Bank.
Section 4.08 Severability. Any provision of this Agreement which is
prohibited, unenforceable or not authorized in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition, unenforceability or non-authorization without
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invalidating the remaining provisions hereof or affecting the validity, enforceability or legality of
such provision in any other jurisdiction.
Section 4.09 Governing Law; Waiver of Jury Trial. This Agreement shall be
governed by, and construed in accordance with, the laws of the State of New York except that
the authority of the Borrower to execute and delivery this Agreement shall be governed by the
laws of the State of Oregon. TO THE FULLEST EXTENT PERMITTED BY LAW, EACH OF
THE PARTIES HERETO WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR
IN CONNECTION WITH THIS AGREEMENT. EACH PARTY FURTHER WAIVES ANY
RIGHT TO CONSOLIDATE ANY ACTION IN WHICH A JURY TRIAL HAS BEEN
WAIVED WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS
NOT BEEN WAIVED.
Section 4.10 OREGON STATE NOTICE. UNDER OREGON LAW, MOST
AGREEMENTS, PROMISES AND COMMITMENTS MADE BY LENDERS CONCERNING
LOANS AND OTHER CREDIT EXTENSIONS WHICH ARE NOT FOR PERSONAL,
FAMILY OR HOUSEHOLD PURPOSES OR SECURED SOLELY BY A BORROWER'S
RESIDENCE MUST BE IN WRITING, EXPRESS CONSIDERATION AND BE SIGNED BY
LENDERS OR AN AGENT ON BEHALF OF LENDERS TO BE ENFORCEABLE.
Section 4.11 Continuing Obligation. This Agreement is a continuing obligation,
shall survive the expiration of the Bond Letter of Credit until amounts owed hereunder and under
the Credit Agreement are paid in full and shall (a) be binding upon the Borrower, its successors
and assigns, and (b) inure to the benefit of and be enforceable by the LC Issuing Bank and its
successors, transferees and assigns.
Section 4.12 Immediate Advance. The Borrower recognizes that upon issuance
of the Bond Letter of Credit, the LC Issuing Bank is irrevocably bound to honor any and all
drafts drawn and presented in compliance with the terms thereof, up to an aggregate amount
equal to the Stated Amount. Accordingly, in order to induce the LC Issuing Bank to issue the
Bond Letter of Credit, the Borrower agrees that, notwithstanding anything herein to the contrary,
the issuance of the Bond Letter of Credit shall be and is deemed to constitute an immediate
"advance" in the amount of the Stated Amount for purposes of determining the respective rights
of the Borrower and the LC Issuing Bank.
Section 4.13 Drawing a Certification. Each drawing by the Trustee or any agent
thereof under the Bond Letter of Credit shall be deemed (i) a certification by the Borrower that
the representations and warranties incorporated by reference in Section 2.04(c) of this
Agreement are correct in all material respects as of the date of the drawing, and (ii) a
certification by the Borrower that it is in all other respects in compliance with the provisions of
this Agreement.
Section 4.14 Facsimile Documents. At the request of the Borrower, the Bond
Letter of Credit provides that demands for payment thereunder may be presented to the LC
Issuing Bank by, among other methods, facsimile. The Borrower acknowledges and assumes all
risks relating to the use of such facsimile demands for payment and agrees that its obligations
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under this Agreement, the Credit Agreement and the Related Documents shall remain absolute,
unconditional and irrevocable if the LC Issuing Bank honors such facsimile demands for
payment.
Section 4.15 Counterparts. This Agreement may be executed in counterparts by
the parties hereto, and each such counterpart shall be considered an original and all shall
constitute one and the same instrument.
Section 4.16 USA PATRIOT ACT NOTIFICATION. This notice is provided to
Borrower pursuant to Section 326 of the USA Patriot Act of 2001, 31 U.S.C. Section 5318.
IMPORTANT INFORMATION ABOUT PROCEDURES FOR OPENING A NEW
ACCOUNT. To help the government fight the funding of terrorism and money laundering
activities, federal law requires all financial institutions to obtain, verify and record information
that identifies each person or entity that opens an account, including any deposit account,
treasury management account, loan, other extension of credit, or other financial services product.
What this means for Borrower: When Borrower opens an account, if Borrower is an individual,
the LC Issuing Bank will ask for Borrower's name, taxpayer identification number, business
address, and other information that will allow the LC Issuing Bank to identify Borrower. The
LC Issuing Bank may also ask, if Borrower is an individual, to see Borrower's driver's license or
other identifying documents, and, if Borrower is not an individual, to see Borrower's legal
organizational documents or other identifying documents.
LEGAL26172129.1 11
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and delivered by their respective officers thereunto duly authorized as of the date first
above written.
LEGAL26172129.l
PACIFICORP, as Borrower
By
Name:
Title:
Signature Page to Amended and Restated Letter of Credit Agreement
Sweetwater County, Wyoming
12
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and delivered by their respective officers thereunto duly authorized as of the date first
above written.
LEGAL26172129.1
WELLS FARGO BANK, NATIONAL
ASSOCIATION, as LC Issuing Bank
By
Name:
Title:
Signature Page to Amended and Restated Letter of Credit Agreement
Sweetwater County, Wyoming
13
LEGAL26172129.1
EXHIBIT A
TO
LETTER OF CREDIT AGREEMENT
FORM OF LETTER OF CREDIT
LEGAL26172129.1
EXHIBITB
OPINION OF
COUNSEL FOR THE BORROWER