20080623Short-term Borrowing Agreement.pdf

iS_
An IDACORP Company
IDAHO POWER COMPANY
P.O. BOX 70
BOISE, IDAHO 83707
¿.i El"Î 8: I I
PATRICKA. HARRINGTON
Corporate Secretary
June 19,2007
Ms. Jean D. Jewell
Secretar
Idaho Public Utilities Commission
Statehouse
Boise, Idaho 83720
Re: In the Matter of the Application ofIdaho Power Company for an Order
Authorizing up to $450,000,000 Aggregate Principal Amount at any One
Time Outstanding of Short-Term Borrowings
Case No. IPC-E-07-06
Dear Ms. Jewell:
Enclosed for fiing with the Commission is a short-term borrowing agreement
Idaho Power has entered into under its $450 milion short-term borrowing authority in the
above referenced case. The Term Loan Credit Agreement ("Agreement") was entered
into with JPMorgan Chase Ban, Ban of America, Wachovia Ban, and Union Ban of
California as paricipating lenders. Idaho Power borrowed $170 millon under the
Agreement for the term of April 1,2008 through March 31, 2009. Idaho Power is filing
five (5) copies of the Agreement pursuant to Section 9 of its application in this case,
under which the Company is to fie "agreements evidencing the (short-term) borrowing
arangements hereunder".
Please feel free to contact me at 388-2878 if you have any questions regarding
this fiing.
c: Terri Carlock
Telephone [phone], Fax [phone]
#
C::.S:i ..~;, 'e."".
l I
TERM LOAN CREDIT AGREEMENT
among
IDAHO POWER COMPANY,
as Borrower,
TH LENDERS NAMD HEREIN
and
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent
J.P. MORGAN SECURTIES INC.
as
Lead Aranger and Sole Book Runer
Dated as of April 1, 2008
L\
CHI 4183492v.8
EXECUTION VERSION
('
Table of Contents
Page
ARTICLE 1
DEFINITIONS
1.1 . Definitions ................................................. ..... ....... ................ ....................... ........ ....... ........ 1
1.2. Other Interpretive Provisions............................................................................................. 12
(
2.1.
2.2.
2.3.
2.4.
2.5.
2.6.
2.7.
2.8.
2.9.
2.10.
2.11.
2.12.
2.13.
2.14.
2.15.
2.16.
2.17.
2.18.
2.19.
ARTICLE 2
THE CREDITS
Commitments............................... ........................... ........................................................... 12
Required Payments; Termination. .....................................................................................12
Types of Advances; Minimum Amount of Each Advance................................................ 13
Fees.................................................................................................................................... 13
Reduction or Termination of Aggregate Commitment.................................... ..... ............13
Optional Principal Payments............................................................................................. i 3
Requesting Loans .............................................................................................................. 13
Conversion and Continuation of Outstanding Advances .................. ................................ 14
Changes in Interest Rate, etc. ....................................................................................;....... 14
Rates Applicable After Default .................... ................ ............................... ...................... 15
Method of Payment................. .......................................................................................... 15
Noteless Agreement; Evidence oflndebtedness. .................... ........ .................................. 15
Telephonic Notices ....... ......................... ................................... ............................... .......... 16
Interest Payment Dates; Interest and Fee Basis............................................................;.... 16
Notification of Advances, Interest Rates, Prepayments and Commitment
Reductions......................................................................................................................... 17
Lending Installations ........ ....................................... ....... ...... ........ ...... ......... ................. .....17
Non-Receipt of Funds by the Administrative Agent......................................................... 17
lReserved.l.... .... ... ............ ........... ..................................... ................ .............. ........ ........... 17
Replacement of Lender............................................................................... ....................... 18
ARTICLE 3
YIELD PROTECTION; TAXS
3.1. Yield Protection. ............. ............... ................... ................. ..................... ...........................18
3.2. Changes in Capita Adequacy Regulations ....................................................................... 19
3.3. Availabilty of Types of Advances.....................................,.............................................. 19
3.4. Funding Indemnfication ...................................................................................................19
3.5. Taxes..................................................................................................................................20
3.6. Alternate Lending Installation; Lender Statements; SurivalofIndemnity......................22
Table of Contents
Page
ARTICLE 4
CONDITIONS PRECEDENT
4.1. Closing Date ...... ....... ............ ........... ...... ......... ........ .............. ......... ...... ...... .......... .............. 23
l\
5.1.
5.2.
5.3.
5.4.
5.5.
5.6.
5.7.
5.8.
5.9.
5.10.
5.11.
5.12.
5.13.
5.14.
5.15.
5.16.
5.17.
5.18.
ARTICLES
REPRESENTATIONS AN WARTIES
Existence and Stading.......................................................................'...............................24
Authorization and Validity....................................... ....................... ..................................24
No Confict; Governent Consent.... ............. ...... .......... ...... .......... ........... ........... ............. 24
Financial Statements.......................................................................................................... 25
Material Adverse Change.................................................................................................. 25
Taxes..................................................................................................................................25
Litigation and Contingent Obligations ............ ..... ..................... .................... .................... 25
Subsidiares..................................................................................... ................................... 26
ERISA................................................................................................................................26
Accuracy of Infonnation ................................................................................................ ...26
Regulation U.....................................................................................................,................26
Material Agreements......................................................................................................... 26
Compliance With Laws ...........................................................................................J.........26
Ownership of Propertes. ........................ ......................... ........ ............. .............. ..... .......... 27
Plan Assets; Prohibited Transactions .......... ..... ................ ............................. ...... .............. 27
Environmental Matters ..... ............ ............ ............. .............. ...................... ...... ......... ......... 27
Investment Company Act ............. .......... ................................. ......... .............. .......... ......... 27
OFAC; PATROT Act.......................................................................................................27
ARTICLE 6
COVENANTS
6.1. Financial Reportng ................................ ........................... .................... ............................ 28
6.2. Use of Proceeds .................................................................................................................29
6.3. Notice of Default, etc.........................................................................................................29
6.4. Conduct of Business ..........................................................................................................29
6.5. Taxes..................................................................................................................................30
6.6. Insurance.............. .... ............................... ......................................................... .................. 30
6.7. Compliance with Laws ......................................................................................................30
6.8. Maintenance of Propertes ........................................................................................ ......... 30
6.9. Inspection............................................................................................................................30
6.10. Merger and Sale of Assets.................................................................................................30
6.11. Liens ..................................................................................................................................30
6.12. Leverage Ratio...................................................................................................................32
6.13. Investments and Acquisitions............................................................................................32
11
Table of Contents
Page
6.14. Subsidiar Dividend Restrictions ......................................................................................32
6.15. Affiliates ............................................................................................................................33
6.16. OFAC, PATRIOT Act Compliance...................................................................................33
ARiICLE7
DEFAULTS
ARTICLE 8
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
8.1. Acceleration. ...................................................................................................................... 35
8.2. Amendments......................................................................................................................36
8.3. Preservation of Rights .......................................................................................................36
ARTICLE 9
GENERAL PROVISIONS
9.1. Surival ofRepresentations..................................................~............................................36
9.2. Governenta Regulation..................................................................................................37
9.3. Headings ............................................................................................................................37
9.4. Entire Agreement...............................................................................................................37
9.5. Several Obligations; Benefits of this Agreement ..............................................................37
9.6. Expenses; Indemnification. ...............................................................................................37
9.7. Numbers of Documents................................................................................ .....................38.
9.8. Accounting.........................................................................................................................38
9.9. Severability of Provisions......................................................... .........................................38
9.10. Nonliability of Lenders.................................................................................. ....................38
9.11. Confidentiality ...................................................................................................................39
9.12. Nonreliance........................................................................................................................39
9.13.. Disclosure ..........................................................................................................................39
9.14. PATROT Act Notice............................................................................... .........................39
9.15. Counterpars........................................................................................................................39
ARTICLE 10
THE ADMINISTRATIV AGENT
10.1. Appointment; Natue of Relationship..................................................................... ...........40
10.2. Powers ..... ............. ......................... .......................................... ..................... ............. ........ 40
10.3. . General Immunity..............................................................................................................40
lOA. No Responsibilty for Loans, Recitals, etc. .......................................................................40
10.5. Action on Instrctions of Lenders .....................................................................................41
11
(10.6.
10.7.
10.8.
10.9.
10.10.
10.11.
10.12.
10.13.
10.14.
10.15.
Table of Contents
Page
Employment of Administrative Agents and Counsel............................... .........................41
Reliance on pocuments; Counsel............. ................ ................. ........... ............................. 4 I
Administrative Agent's Reimbursement and Indemnification.....................:....................41
Notice of Default ...............................................................................................................42
Rights as a Lender......... ..... .................... ........................................................................... 42
Lender Credit Decision......................................................................................................42
Successor Administrative Agent .......................................................................................43
Administrative Agent and Aranger Fees ......................... .......... ....................................... 43
Delegation to Affliates .....................................................................................................43-
Other Agents........................................~.............................................................................44
ARTICLE 11
SETOFF; RATABLE PAYMENTS
11.1. Setoff .................................................................................................................................44
I 1.2. Ratable Payments ...... .............. .......... .... ..... ...... .............. ........... ...... ........................... ....... 44
(
12.1.
12.2.
12.3.
12.4.
12.5.
ARTICLE 12
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
Successors and Assigns.............. .......................................................................... .'............44
Paricipations. ...... .......... ... ............ ..... ...... .............. ........ ... ......... ............ .... ............. .... .......45
Assignents....................................................................................................................... 46
Dissemination of Information............................................................................................ 47
Tax Treatment....................................................................................................................47
ARTICLE 13
NOTICES
13.1. Notices. ..............................................................................................................................47
13.2. Chage of Address.............................................................................................................48
ARTICLE 14
CHOICE OF LAW; CONSENT TO JUSDICTION; WAIVER OF JURY TRIAL
14.1. CHOICE OF LAW ............................................................................................................48
14.2. CONSENT TO JURISDICTION ......................................................................................49
14.3. WANER OF JUy TRAL ...............................................................................................49
(
iv
(Schedule I
Schedule 5.8
Schedule 5.i 2
Schedule 5.14
Schedule 13. I
EXHIBIT A
EXHIBITB
EXHIBITC
EXHIBITD
EXHIBITE
Table of Contents
Page
Commitments
List of Subsidiares
Agreements which restrct Subsidiar Dividends or which could reasonably
be expected to have a Material Adverse Effect
Indebtedness and Liens
Notice Addresses
Forms of Opinions
Form of Compliance Certificate
Form of Assignent Agreement
Form of Written Money Transfer Instrction
Form of Note
v
TERM LOAN CREDIT AGREEMENT
This Term Loan Credit Agreement, dated as of April i, 2008 is made among Idaho
Power Company, an Idaho corporation, the Lenders, and JPMorgan Chase Ban, N.A., as
Administrative Agent for the Lenders.
In consideration of the mutual provisions, covenants and agreements herein contained,
the paries hereto hereby agree as follows:
ARTICLE 1
DEFINITIONS
1. I . Definitions. As used in ths Agreement:
"\\,
"Acquisition" means any transaction, or any series of related transactions, consumated
on or afer the Closing Date, by which the Borrower or any of its Subsidiares (i) acquires any
going business or all or substantially all of the assets of any firm, corporation or limited liabilty
company, or division thereof, whether though purchase of assets, merger or otherwse or (ii)
directly or indirectly acquires (in one transaction or as the most recent transaction in a series of
transactions) at least a majority (in number of votes) of the securties of a corporation which have
ordinar voting power for the election of directors (other than securties having such power only
by reason of the happening of a contingency) or a majority (by percentage or voting power) of
the outstading ownership interests of a parership or limited liabilty company.
"Administrative Agent" means JPMorgan in its capacity as administrative agent (Le.,
contractual representative) of the Lenders pursuant to Artcle 10, and not in its individual
capacity as a Lender, and any successor Administrative Agent appointed pursuant to Article 10.
"Administrtive Questionnaire" means an admnistrative questionnaie, substantially in
the form supplied by the Administrative Agent, completed by a Lender and fuished to the
Administrative Agent in connection with ths Agreement.
"Advance" means the borrowing hereunder, (i) made by the Lenders on the Closing Date,
or (ii) converted or continued by the Lenders on the same date of conversion or continuation and,
in either case, consisting of Loans of the same Type and, in the case of Eurodollar Advances, for
the same Interest Period.
"Afected Lender" is defined in Section 2.19.
"Affiiate" of any Person means any other Person directly or indirectly controllng,
controlled by or under common control with such Person. A Person shall be deemed to control
another Person if the controllng Person owns 10% or more of any class of voting securties (or
other ownership interests) of the controlled Person or possesses, directly or indirectly, the power
to direct or cause the direction of the management or policies of the controlled Person, whether
though ownership of stock, by contract or otherwse.
"Aggregate Commitment" means the aggregate of the Commitments of all the Lenders,
as reduced from time to time pursuat to the terms hereof.
"Aggregate Outstanding Credit Exposure" means, at any time, the aggregate of the
Outstanding Credit Exposure of all the Lenders.
"Agreement" means this Term Loan Credit Agreement, as amended, modified, restated or
supplemented from time to time in accordance with its terms.
"Agreement Accounting Principles" means generally accepted accounting principles as in
effect from time to time applied in a maner consistent with that used in preparng financial
statements referred to in Section S.4.
"Alternate Base Rate" means, for any day, a rate of interest per anum equal to the higher
of (i) the Prime Rate for such day and (ii) the sum of the Federal Funds Effective Rate for such
day plus 1/2% per anum. Any change in the Alternate Base Rate due to a change in the Prime
Rate or the Federal Funds Effective Rate shall be effective from and including the effective date
of such change in the Prime Rate or the Federal Funds Effective Rate, respectively.
"Applicable Margin" means, with respect to Loans bearing interest at the Eurodollar Base
Rate, 0.75% per anum.
"Approved Fund" means any Person (other than a natual person) that is engaged in
making, purchasing, holding or investing in ban loans and similar extensions of credit in the
ordinar course of its business and that is administered or managed by (a) a Lender, (b) an
Affiliate of a Lender or (c) an entity or an Affliate of an entity that administers or manages a
Lender.
"Aranger" means 1.P. Morgan Securities Inc., and its successors, in its capacity as Lead
Aranger and Sole Book Runer.
"Authorized Offcer" means any of the Chief Executive Offcer, President, Chief
Financial Offcer, Vice President or Treasurer of the Borrower, acting singly.
"Borrower" means Idaho Power Company, an Idaho corporation, and its successors and
assigns.
"Borrowing Notice" is defined in Section 2.7.
(
"Business Day" means (i) with respect to any borrowing, payment or rate selection of
Eurodollar Advances, a day (other than a Satuday or Sunday) on which bans generally are
open in New York, New York and London, England for the conduct of substatially all of their
commercial lending activities, interban wire transfers can be made on the Fedwire system and
dealings in United States dollars are cared on in the London interban market and (ii) for all
other puroses, a day (other than a Satuday or Sunday) on which bans generally are open in
New York, New York for the conduct of substantially all of their commercial lending activities
and interban wie transfers can be made on the Fedwire system.
2
"Capitalized Lease" of a Person means any lease of Property by such Person as lessee,
which would be capitalized on a balance sheet of such Person prepared in accordance with
Agreement Accounting Principles.
"Capitalized Lease Obligations" of a Person means the amount of the obligations of such
Person under Capitalized Leases which would be shown as a liability on a balance sheet of such
Person prepared in accordance with Agreement Accounting Principles.
"Cash Equivalent Investments" means (i) short-term obligations of, or fully guaranteed
by, the United States of America, (ii) commercial paper rated A-lor better by S&P or P-1 or
better by Moody's, (iii) demand deposit accounts maintained in the ordinar course of business,
and (iv) certificates of deposit issued by and time deposits with commercial bans (whether
domestic or foreign) having capita and surlus in excess of $ 100,000,000; provided in each case
that the same provides for payment of both principal and interest (and not principal alone or
interest alone) and is not subject to any contingency regarding the payment of principal or
interest.
"Change" is defined in Section 3.2.
"Change in Control" means the acquisition by any Person, or two or more Persons acting
in concert, of beneficial ownership (within the meaing of Rule I3d-3 of the Securities and
Exchange Commission under the Securties Exchange Act of 1934) of20% or more ofthe
outstading shares of voting stock of the Parent.
(" "Change in Law" means any change in law or in the interpretation, administration or
application thereof (including the introduction of any new law, treaty or governenta rule,
regulation or order), or any determination of a cour or governental authority, in each case that
becomes effective afer the date hereof.
"Closing Date" means the first date all the conditions precedent in Section 4.1 are
satisfied or waived in accordance with the terms of this Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commitment" mean, for each Lender, the obligation of such Lender to make Loans to
the Borrower on the Closing Date in an aggregate amount not exceeding the amount set fort
opposite its name on Schedule I, or, if such Lender has entered into one or more assignents
that has become effective pursuant to Section 12.3(a), the amount set fort for such Lender at
such time in the Register maintained by the Administrative Agent, in either case, as such amount
may be reduced from time to time pursuat to the terms hereof.
"Condemnation" is defined in Section 7(i).
"Consolidated Indebtedness" means at any time the Indebtedness of the Borrower and its
Subsidiares calculated on a consolidated basis as of such time; provided, however that the
aggregate outstanding Indebtedness evidenced by Hybrid Securties shall be excluded to the
extent that the tota book value of such Hybrid Securties does not exceed 15% of Consolidated
Tota Capitalization as of such time.\
3
"Consolidated Net Wort" means at any time the consolidated stockholders' equity ofthe
Borrower and its Subsidiaries calculated on a consolidated basis as of such time.
"Consolidated Tota Capitalization" means at any time, without duplication, the sum of
(i) Consolidated Indebtedness, (ii) Consolidated Net Wort and (iii) the aggregate outstanding
amount of Hybrid Securties, each calculated as of such time.
"Contingent Obligation" of a Person means any agreement, undertaking or arangement
by which such Person assumes, guarantees, endorses, contingently agrees to purchase or provide
fuds for the payment of, or otherwse becomes or is contingently liable upon, the obligation or
liability of any other Person, or agrees to maintain the net worth or working capital or other
financial condition of any other Person, or otherwse assures any creditor of such other Person
against loss, including any comfort letter, operating agreement, tae or pay contract or the
obligations of any such Person as general parer of a parership with respect to the liabilties of
the parnership.
"Conversion/Continuation Notice" is defined in Section 2.8.
"Controlled Group" means all members of a controlled group of corporations or other
business entities and all trades or businesses (whether or not incorporated) under common
control which, together with the Borrower or any of its Subsidiares, are treated as a single
employer under Section 414 of the Code.
"Default" means an event described in Article 7.
"Environmental Laws" means any and all applicable federal, state, local and foreign
statutes, laws, judicial decisions, regulations, ordinances, rules, judgments, orders, decrees,
plans, injunctions, permits, concessions, grants, franchises, licenses, agreements and other
governental restrictions relating to (i) the protection of the environment, (ii) the effect of the
environment on human health, (ii) emissions, discharges or releases of pollutats, containants,
hazardous substances or wastes into surace water, ground water or land, or (iv) the manufactue,
processing, distribution, use, treatment, storage, disposal, transport or handling of pollutants,
containants, hazardous substances or wastes or the clean-up or other remediation thereof.
"ERISA" means the Employee Retirement Income Securty Act of 1974.
"Eurodollar Advance" means a Loan, or portion thereof, which, except as otherwse
provided in Section 2.10, bears interest at the applicable Eurodollar Rate.
"Eurodollar Base Rate" mean, with respect to any Eurodollar Advance for any Interest
Period, the rate appearng on Reuters BBA Libor Rates Page 3750 (or on any successor or
substitute page of such service, or any successor to or substitute for such service, providing rate
quotations comparble to those curently provided on such page of such service, as determined
by the Administative Agent from time to time for puroses of providing quotations of interest
rates applicable to dollar deposits in the London interban market) at approximately I I :00 a.m.,
London time, two Business Days prior to the commencement of such Interest Period, as the rate
for dollar deposits with a matuty comparable to such Interest Period. In the event that such rate
is not available at such time for any reason, then the "Eurodollar Base Rate" with respect to such
4
(
Eurodollar Advance for such Interest Period shall be the rate at which dollar deposits of
$5,000,000 and for a matuty comparable to such Interest Period are offered by the principal
London office of the Administrative Agent in immediately available fuds in the London
interban market at approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period.
"Eurodollar Rate" means, with respect to any Eurodollar Advance for any Interest Period,
an interest rate per anum (rounded upwards, if necessar, to the next 1/16 of 1 %) equal to the
sum of (i) (a) the Eurodollar Base Rate for such Interest Period multiplied by (b) the Statutory
Reserve Rate and (ii) the Applicable Margin.
"Excluded Taxes" means, in the case of each Lender or applicable Lending Installation
and the Administrative Agent, taxes imposed on its overall net income, receipts, profits, capital,
net worth, franchise taxes, branch profits or similar taxes, imposed on it, by (i) the jursdiction
under the laws of which such Lender or the Administrative Agent is incorporated or organized,
(ii) the jursdiction in which the Administrative Agent's or such Lender's principal executive
offce or such Lender's applicable Lending Instalation is located, or (iii) the jurisdiction in
which the Lender, Lending Installation or the Administrative Agent cares on a trade or
business.
"Facility Termination Date" means March 3 1,2009.
(
"Federal Funds Effective Rate" means, for any day, the weighted average (rounded
upwards, if necessary, to the next 1/100 of 1 %) of the rates on overnight Federal fuds
transactions with members of the Federal Reserve System aranged by Federal fuds brokers, as
published on the next succeeding Business Day by the Federal Reserve Ban of New York, or, if
such rate is not so published for any day that is a Business Day, the average (rounded upwards, if
necessar, to the next 1/100 of 1%) of the quotations for such day for such transactions received
by the Administrative Agent from thee Federal fuds brokers of recognized stading selected by
it.
"Fee Letter" means the letter agreement dated April I, 2008 among the Borrower, the
Administrative Agent and the Aranger.
"First Mortgage" means that certain Mortgage and Deed of Trust, dated as of October 1,
1937, as supplemented, under which the Borrower is Mortgagor and Deutsche Ban Trust
Company Americas (formerly known as Baners Trust Company) and R.G. Page (Staley Burg
successor individual trstee) are Trustees, as it may from time to time be fuer amended,
supplemented or otherwise modified.
"Floating Rate Advance" means a Loan, or portion thereof, which, except as otherwse
provided in Section 2.10, bears interest at the Alternate Base Rate.
"Hybrid Securities" shall mean any hybrid securties, including any trst preferred
securties, deferrable interest subordinated debt securities, mandatory convertible debt securties
or other hybrid securties issued by the Borrower or any Subsidiar or financing vehicle of the
Borrower that (i) have an original matuty of at least twenty (20) years, (ii) require, absent an
event of default with respect to such securties, no repayments or prepayments and no mandatory
5
redemptions or repurchases, in each case, prior to the date which is ninety-one (91) days afer the
occurence ofthe Facilty Termination Date and (ii) permit the Borrower or any such Subsidiar
or any such financing vehicle of the Borrower, respectively, at its option, to defer certain
scheduled interest payments.
"Indebtedness" of a Person means such Person's (i) obligations for borrowed money,
(ii) obligations representing the deferred purchase price of Propert or services (other than
accounts payable arising in the ordinar course of such Person's business payable on terms
customar in the trade), (iii) obligations, whether or not assumed, secured by Liens or payable
out of the proceeds or production from Property now or hereafer owned or acquired by such
Person, (iv) obligations which are evidenced by notes, acceptaces, or other instrents,
(v) obligations of such Person to purchase securties or other Propert arising out of or in
connection with the sale of the same or substatially similar securties or Propert,
(vi) Capitalized Lease Obligations, (vii) Contingent Obligations, (viii) obligations in respect of
Letters of Credit, (ix) Rate Management Obligations, (x) preferred stock which is required by the
terms thereof to be redeemed, or for which mandatory sining fud payments are due, by a fixed
date, (xi) Off-Balance Sheet Liabilties, (xii) any other obligation for borrowed money or other
financial accommodation which in accordance with Agreement Accounting Principles would be
shown as a liabilty on the consolidated balance sheet of such Person and (xii) amounts
outstanding under a Permitted Receivables Securitization. For puroses of determining
Indebtedness, the "principal amount" of the obligations of the Borrower or any of its Subsidiares
in respect of any Rate Management Obligation at any time shall be the maximum aggregate
amount (giving effect to any netting agreements) that the Borrower ,or such Subsidiar would be
required to pay if such Rate Management Obligation were terminated at such time of
determination.
"Indemntee" is defined in Section 9.6(b).
"Interest Period" means, with respect to a Eurodollar Advance, a period of one, two, three
or six months commencing on a Business Day selected by the Borrower pursuat to this
Agreement. Each Interest Period shall end on the day which corresponds numerically to such
date one, two, thee or six months thereafer, provided that if any Interest Period commences on
the last Business Day of a calendar month, or if there is no such numerically corresponding day
in such next, second, thrd or sixth succeeding month, such Interest Period shall end on the last
Business Day of such next, second, thrd or sixth succeeding month. If an Interest Period would
otherwse end on a day which is not a Business Day, such Interest Period shall end on the next
succeeding Business Day, provided that if said next succeeding Business Day falls in a new
calendar month, such Interest Period shall end on the ,immediately preceding Business Day.
"Investment" of a Person means any loan, advance (other than commssion, travel and
similar advances to officers and employees made in the ordinar course of business), extension
of credit (other than accounts receivable arsing in the ordinar course of business on terms
customar in the trade) or contrbution of capita by such Person; stocks, bonds, mutual fuds,
parnership interests, notes, debentues or other securities owned by such Person; any deposit
accounts and certificate of deposit owned by such Person; and strctued notes, derivative
financial instrents and other similar instrents or contracts owned by such Person.
6
(\
"JPMorgan" means lPMorgan Chase Ban, N.A. and its successors.
"Lenders" mean the lending institutions listed on the signature pages of this Agreement
and their respective successors and asigns.
"Lending Installation" means, with respect to a Lender or the Administrative Agent, the
office, branch, subsidiar or Affiliate of such Lender or the Administrative Agent specified in its
Administrative Questionnaire or otherwse selected by such Lender or the Administrative Agent
pursuant to Section 2.16.
"Letter of Credit" of a Person means a letter of credit or similar instrent which is
issued upon the application of such Person or upon which such Person is an account par or for
which such Person is in any way liable.
"Lien" means any lien (statutory or other), mortgage, pledge, hypothecation, assignment,
deposit arangement, encumbrance or preference, priority or other securty agreement or
preferential arrangement of any kind or natue whatsoever (including the interest of a vendor or
lessor under any conditional sale, Capitalized Lease or other title retention agreement).
"Loans" is defined in Section 2.1.
"Loan Documents" means ths Agreement, the Fee Letter and any Notes issued pursuant
to Section 2.12.
("London Business Day" means a day (other than Satuday or Sunday) on which bans
generally are optm in London, England for the conduct of substantially all of their commercial
lending activities and dealings are cared on in the London interban market.
"Material Adverse Effect" means a material adverse effect on (i) the business, Property,
condition (financial or otherwise), results of operations, or prospects of the Borrower and its
Subsidiares taken as a whole, (ii) the abilty of the Borrower to perform its obligations under the
Loan Documents, or (ii) the validity or enforceabilty of any of the Loan Documents or the
rights or remedies of the Administrative Agent or the Lenders thereunder.
"Material Indebtedness" means Indebtedness (other than Obligations) of the Borrower or
any of its Subsidiares, in an aggrgate pricipal amount exceeding $25,000,000 (or its
equivalent in any other curency).
"Material Subsidiar" of the Borrower mean any Subsidiar (a) whose gross revenues
for the fiscal year in respect of which such sttements and related balance sheet were prepared
(or the last full fiscal year in the case of quarerly fInancial statements) exceeded i 0% of the
consolidated gross revenue of the Borrower and all its Subsidiaries for such fiscal year or (b)
whose gross assets as at the end of such fiscal year were in excess of 10% of the consolidated
gross assets of the Borrower and all its Subsidiares for such fiscal year.
"Moody's" means Moody's Investors Servce, Inc.
7
"Multi employer Plan" means a Plan maintained pursuant to a collective bargaining
agreement or any other arangement to which the Borrower or any member of the Controlled
Group is a pary to which more than one employer is obligated to make contrbutions.
"Non-U.S. Lender" is defined in Section 3.S(d).
"Note" means a promissory note issued at the request of a Lender pursuant to Section
2.12(d), in substantially the form of Exhibit E hereto, evidencing the aggregate indebtedness of
the Borrower to such Lender resulting from the Loans made by such Lender.
"Obligations" mean all unpaid principal of and accrued and unpaid interest on the
Loans, all accrued and unpaid fees and all expenses, reimbursements, indemnties and other
obligations of the Borrower to the Lenders or to any Lender, the Administrative Agent or any
indemnified pary arising under the Loan Documents.
"OFAC" means the U.S. Deparent of the Treasury's Offce of Foreign Assets Control,
and any successor thereto.
('
"Off-Balance Sheet Liabilty" of a Person means, without duplication, (i) any repurchase
obligation or liability of such Person with respect to accounts or notes receivable sold by such
Person, (ii) any liabilty under any Sale and Leaseback Transaction which is not a Capitaized
Lease, (ii) any liability under any so-called "synthetic lease" transaction entered into by such
Person, or (iv) any obligation arsing with respect to any other transaction which is the fuctional
equivalent of or takes the place of borrowing but which does not constitute a liability on the
balance sheets of such Person, but excluding from ths clause (iv) all Operating Leases.
"Operating Lease" of a Person means any lease of Property (other than a Capitalized
Lease) by such Person as lessee, which has an original term (including any required renewals and
any renewals effective at the option of the lessor) of one year or more.
"Other Taxes" is defined in Section 3.S(b).
"Outstading Credit Exposure" means, as to any Lender at any time, the aggregate
principal amount of all Loans made by such Lender outstading at such time.
"Parent" means IDACORP, Inc., an Idaho corporation, and its successors and assigns.
"Paricipants" is defined in Section 12.2(a).
"P A TR OT Act" means the Uniting and Strengtening America by Providing
Appropriate Tools Required to Intercept and Obstrct Terrorism (USA PATRIOT Act, Title II
of Pub. L. 107-56 (signed into law October 26,2001)), as amended from time to time, and any
successor statute, and all rules and reguations from time to time promulgated thereunder.
"Payment Date" means the last day of each March, June, September and December.
"PBGC" means the Pension Benefit Guaranty Corporation, or any successor thereto.
\
8
"Permitted Receivables Securitization" means a limited recourse or non-recourse sale,
assignment or contribution of accounts receivable and related records, collateral and rights of the
Borrower and/or one or more of its Subsidiares to one or more special purose entities, in
connection with the issuance of obligations by any such special purose entity secured by such
assets, the proceeds of the issuance of which obligations shall be made available, directly or
indirectly, to the Borrower and/or the applicable Subsidiaries.
"Person" means any natual person, corporation, firm, joint ventue, parership, limited
liability company, association, enterprise, trst or other entity or organization, or any governent
or political subdivision or any agency, deparment or instrentality thereof.
"Plan" means an employee pension benefit plan which is covered by Title iv of ERISA
or subject to the minimum fuding standards under Section 412 of the Code as to which the
Borrower or any member of the Controlled Group may have any liabilty.
"Prime Rate" mean the per anum interest rate publicly anounced from time to time by
JPMorgan, to be its prime rate in effect at its principal offce in New York City (which may not
necessarily be its lowest or best lending rate), as adjusted to conform to changes as of the
opening of business on the date any such change is publicly anounced.
"Property" of a Person means any and all property, whether real, personal, tangible,
intangible, or mixed, of such Person, or other assets owned, leased or operated by such Person.
"Pro Rata Share" means, with respect to a Lender, a portion equal to a fraction the
numerator of which is such Lender's Commtment and the denominator of which is the
Aggregate Commitment (or, if the Commitments have been terminated, a portion equal to a
fraction (i) the numerator of which is equal to the principal amount of such Lender's Loans and
(ii) the denominator of which is equal to the aggregate principal amount of all Loans.
"Purchasers" is defined in Section 12.3(a).
"Rate Management Obligations" of a Person means any and all obligations of such
Person, whether absolute or contingent and howsoever and whensoever created, arsing,
evidenced or acquired (including all renewals, extensions and modifications thereof and
substitutions therefor), under (i) any and all Rate Management Tranactions, and (ii) any and all
cancellations, buy backs, reversals, termnations or assignments of any Rate Management
Transactions.
"Rate Management Transaction" means any transaction (including an agrement with
respect thereto) now existing or hereafer entered into by the Borrower or the Parent which is a
rate swap, basis swap, forward rate transaction, commodity swap, commodity option, equity or
equity index swap, equity or equity index. option, bond option, interest rate option, foreign
exchange transaction, cap transaction, floor transaction, collar transaction, forward transaction,
curency swap transaction, cross-curency rate swap transaction, curency option or any other
similar transaction (including any option with respect to any of these transactions) or any
combination thereof, whether linked to one or more interest rates, foreign curencies, commodity
prices, equity prices or other financial measures.
9
"Register" is defined in Section 12.3(c).
"Regulation D" means Regulation D of the Board of Governors of the Federal Reserve
System as from time to time in effect and any successor thereto or other regulation or official
interpretation of said Board of Governors relating to reserve requirements applicable to member
bans of the Federal Reserve System.
"Regulation U" means Regulation U of the Board of Governors ofthe Federal Reserve
System as from time to time in effect and any successor or other regulation or offcial
interpretation of said Board of Governors relating to the extension of credit by bans for the
purose of purchasing or caring margin stocks applicable to member bans of the Federal
Reserve System.
"Reportable Event" means a reportable event as defined in Section 4043 of ERISA and
the regulations issued under such section, with respect to a Plan, excluding, however, such events
as to which the PBGC has by regulation waived the requirement of Section 4043(a) of ERISA
that it be notified withn thirt (30) days of the occurence of such event, provided that a failure
to meet the minimum fuding standard of Section 412 of the Code and of Section 302 of ERISA
shall be a Reportable Event regardless of the issuance of any such waiver of the notice
requirement in accordance with either Section 4043(a) of ERISA or Section 412(d) of the Code.
"Reports" is defined in Section 9.6.
"Required Lenders" means Lenders in the aggregate having at least a majority of the
( Aggregate Commitment or, if the Aggregate Commitment has been terminated, Lenders in the
aggregate holding at least a majority of the Aggregate Outstanding Credit Exposure.
"Risk-Based Capital Guidelines" is defined in Section 3.2.
"S&P" means Standard and Poor's Ratings Services, a division of The McGraw Hil
Companies, Inc.
"Sale and Leaseback Transaction" means any sale or other transfer of Property by any
Person with the intent to lease such Property as lessee.
"Sanctioned Countr" means a countr subject to a sanctions program identified on the
list maintaned by OF AC and available at
htt://ww.treas.gov/offices/enforcement/ofac/sanctions/, or as otherwse published from time to
time.
"Sanctioned Person" means (i) a Person named on the list of Specially Designated
Nationals or Blocked Persons maintaned by OF AC available at
htt://ww.treas.gov/offices/enforcement/ofac/sdn/tl Isdn.pdf, or as otherwise published from
time to time, or (ii) (A) an agency of the governent of a Sanctioned Countr, (B) an
organization controlled by a Sanctioned Countr, or (C) a Person resident in a Sanctioned
Countr, to the extent subject to a sanctions program administered by OFAC.
10
"Single Employer Plan" means a Plan maintaned by the Borrower or any member of the
Controlled Group for employees of the Borrower or any member of the Controlled Group.
"Statutory Reserve Rate" mean a fraction (expressed as a decimal), the numerator of
which is the number one and the denominator of which is the number one minus the aggregate of
the maximum reserve percentages (including any marginal, special, emergency or supplemental
reserves) expressed as a decimal established by the Board of Governors of the Federal Reserve
System to which the Administrative Agent is subject for eurocurrency fuding (currently referred
to as "Eurocurency Liabilities" in Regulation D). Such reserve percentages shall include those
imposed puruant to such Regulation D. Eurodollar Advances shall be deemed to constitute
eurocurency fuding and to be subject to such reserve requirements without benefit of or credit
for proration, exemptions or offsets that may be available from time to time to any Lender under
such Regulation D or any comparable regulation. The Statutory Reserve Rate shall be adjusted
automatically on and as of the effective date of any change in any reserve percentage.
"Subsidiar" of a Person means (i) any corporation more than 50% of the outstanding
securities having ordinar voting power of which shall at the time be owned or controlled,
directly or indirectly, by such Person or by one or more of its Subsidiaries or by such Person and
one or more of its Subsidiares, or (ii) any parership, limited liabilty company, association,
joint venture or similar business organzation more than 50% of the ownership interests having
ordinar voting power of which shall at the time be so owned or controlled. Unless otherwse
expressly provided, all references herein to a "Subsidiar" shall mean a Subsidiar of the
Borrower.
"Substantial Portion" means, with respect to the Property of the Borrower and its
Subsidiares, Propert which (i) represents more than 10% of the consolidated assets of the
Borrower and its Subsidiares as would be shown in the consolidated financial statements of the
Borrower and its Subsidiares as of the beginnng of the twelve-month period ending with the
month in which such determination is made, or (ii) is responsible for more than 10% of the
consolidated net sales or of the consolidated net income of the Borrower and its Subsidiares as
reflected in the financial statements referred to in clause (i) above.
"Taxes" means any and all present or futue taes, duties, levies, imposts, deductions,
charges or witholdings, and any and all liabilties with respect to the foregoing, but excluding
Excluded Taxes and Other Taxes.
"Trasferee" is defined in Section 12.4.
"Type" is defined in Section 2.3.
"Unfded Liabilties" means the amount (if any) by which the present value of all
vested and unvested accrued benefits under all Single Employer Plans exceeds the fair market
value of all such Plan assets allocable to such benefits, all determined as of the then most recent
valuation date for such Plans using PBGC actuaral assumptions for single employer plan
terminations.
''Unmatued Default" means an event which but for the lapse of time or the giving of
notice, or both, would constitute a Default.
11
(
"Wholly-Owned Subsidiar" of a Person means (i) any Subsidiar all of the outstading
voting securities of which shall at the time be owned or controlled, directly or indirectly, by such
Person or one or more Wholly-Owned Subsidiares of such Person, or by such Person and one or
more Wholly-Owned Subsidiares of such Person, or (ii) any parership, limited liabilty
company, association, joint ventue or similar business organization 100% of the ownership
interests having ordinar voting power of which shall at the time be so owned or controlled.
1.2. Other Interpretive Provisions.
(a) The meanngs of defined terms are equally applicable to the singular and
plural forms of such terms.
(b) Section, Schedule and Exhibit references are to ths Agreement uness
otherwse specified.
(c) The terms "including," "includes" and "include" shall be deemed to be
followed by the phrase "without limitation."
(d) In the computation of periods of time from a specified date to a later
specified date, the word "from" means "from and including"; the words "to" and "until" each
mean "to but excluding", and the word "though" means "to and including."
(e) Unless otherwse expressly specified, all references herein to a paricular
time shall mean New York, New York time.
(
(f) Unless otherwse expressly provided herein, (i) references to agreements
(including this Agreement), other contractual instrments and organzational documents shall be
deemed to include all subsequent amendments and other modifications thereto, but only to the
extent such amendments and other modifications are not prohibited by the terms of this
Agreement, and (ii) references to any statute or regulation are to be constred as including all
statutory and regulatory provisions consolidating, amending, replacing, supplementing or
interpreting such statute or reguation.
ARTICLE 2
THE CRDITS
2.1. Commitments. Each Lender severally agrees, on the terms and conditions set
forth in this Agreement, to make term loans to the Borrower (each such term loan, a "Loan" and
collectively, the "Loans") in a single draw on the Closing Date, in Dollars, and in an amount
equal to such Lender's Commitment. Each Loan under ths Section 2.1 shall consist of Loans
made by each Lender ratably in proportion to such Lender's respective Pro Rata Share of the
Aggregate Commitment. No Loan shall be reborrowed once repaid.
2.2. Required Payments; Termination.
12
(a) Except to the extent due or paid sooner pursuant to the provisions of ths
Agreement, the Borrower shall repay to the Lenders the aggregate outstanding principal amount
of each Loan on the Facility Termination Date.
(b) Notwthstanding anything to the contrar herein, except to the extent due
or paid sooner pursuant to the provisions of this Agreement, the Aggregate Outstanding Credit
Exposure and all unpaid Obligations shall be paid in full by the Borrower on the Facilty
Termination Date.
2.3. Types of Advances; Minium Amount of Each Advance. The Loans may be
comprised of Floating Rate Advances or Eurodollar Advances (each, a "Type" of Advance), or a
combination thereof, selected by the Borrower in accordance with Sections 2.7 and 2.8. Each
Eurodollar Advance shall be in the amount of $5,000,000 or a higher integral multiple of
$ 1 00,000, and each Floating Rate Advance shall be in the amount of $5,000,000 or a higher
integral multiple of $100.000.
204. Fees.
(a) The Borrower agrees to pay to the Administrative Agent for the account of
each Lender an upfront fee in an amount agreed to in the Fee Letter, payable on the date of
execution of this Agreement.
(
(b) The Borrower shall pay to the Aranger and the Administrative Agent for
their own respective accounts fees in the amounts and at the times specified in the Fee Letter.
The fees described in this Section 2.4 shall be fully eared when paid and shall not be refudable
for any reason whatsoever.
2.5. Reduction or Termination of Aggregate Commitment. The Commitments shall
terminate upon the earlier of (a) the fuding of the Loans to the Borrower in the maner
specified in Section 2.1 and (ii) 5:00 p.m. on the Closing Date.
2.6. Optional Principal Payments. The Borrower may from time to time pay, without
penalty or premium, all outstading Floatig Rate Advances or, in an aggregate amount of
$5,000,000 or a higher integral multiple of $100,000, any porton of the outstanding Floating
Rate Advances upon one (1) Business Day's prior notice to the Administrative Agent. The
Borrower may from time to time pay, subject to the paYment of any fuding indemnfication
amounts required by Section 3.4 but without penalty or premium, all outstading Eurodollar
Advances or, in an aggregate amount of $5,000,000 or a higher integral multiple of $ i 00,000,
any portion of the outsding Eurodollar Advances upon thee (3) Business Days' prior notice
to the Administrative Agent.
("
2.7. Requestig Loans. In order to obtain the Loans hereunder (excluding, for the
avoidance of doubt, conversions of outstading Loans which shall be made pursuant to Section
2.8), the Borrower shall give the Administrative Agent irrevocable notice (the "Borrowing
Notice") not later than 1 1 :00 a.m. at least one (I) Business Day before the Closing Date to the
extent such Loans will constitute a Floating Rate Advance, and one (l) Business Day before the
Closing Date to the extent such Loans will constitute a Eurodollar Advance (provided, that any
13
request for a Eurodollar Advance shall be accompanied by a written agreement to indemnify the
Lenders for loss or costs of the tye described in Section 3.4 notwthstanding that this
Agreement may not yet be effective), specifying:
Day,
(i) the date of such Advance, which shall be the Closing Date and a Business
(ii) the aggregate amount of such Advance,
(ii) the Type of Advance selected, and
(iv) in the case of a Eurodollar Advance, the Interest Period applicable thereto.
Not later than 1 :00 p.m. on the Closing Date, each Lender shall make available its Pro Rata
Share of the Loans in fuds imediately available to the Administrative Agent at its address
specified pursuant to Article 13. The Administrative Agent will make the fuds so received
from the Lenders available to the Borrower at the Administrative Agent's aforesaid address.
(
2.8. Conversion and Continuation of Outstanding Advances. Floating Rate Advances
shall continue as Floating Rate Advances unless and until such Floating Rate Advances are
converted into Eurodollar Advances pursuant to this Section 2.8 or are repaid in accordance with
Section 2.6. Each Eurodollar Advance shall continue as a Eurodollar Advance until the end of
the then applicable Interest Period therefor, at which time such Eurodollar Advance shall be
automatically converted into a Floating Rate Advance uness (x) such Eurodollar Advance is or
was repaid in 'accordance with Section 2.6 or (y) the Borrower shall have given the
Administrative Agent a Conversion/Continuation Notice (as defined below) requesting that, at
the end of such Interest Period, such Eurodollar Advance continue as a Eurodollar Advance for
the same or another Interest Period. Subject to Section 2.3, the Borrower may elect from time to
time to convert all or any par of a Floating Rate Advance into a Eurodollar Advance. The
Borrower shall give the Administrative Agent irrevocable notice (a "Conversion/Continuation
Notice") of each conversion of a Floating Rate Advance into a Eurodollar Advance or
continuation of a Eurodollar Advance not later than i 1 :00 a.m. at least three (3) Business Days
prior to the date of the requested conversion or continuation, specifying:
(i) the requested date, which shall be a Business Day, of such conversion or
continuation,
(ii) the aggregate amount and Type of the Advance which is to be converted
or continued, and
(ii) the amount of such Advance, which is to be converted into or continued as
a Eurodollar Advance and the duration of the Interest Period applicable thereto.
2.9. Changes in Interest Rate, etc.
(a) Each Floating Rate Advance shall bear interest on the outstading
principal amount thereof, for each day from the date such Floating Rate Advance is made or is
automatically converted from a Eurodollar Advance into a Floating Rate Advance pursuant to
14
Section 2.8, to the date it is paid or is converted into a Eurodollar Advance pursuant to
Section 2.8, at a rate per anum equal to the Floating Rate for such day. Changes in the rate of
interest on that porton of any Loan maintained as a Floating Rate Advance will take effect
simultaeously with each change in the Alternate Base Rate.
(b) Each Eurodollar Advance shall bear interest on the outstading principal
amount thereof from the first day of the Interest Period applicable thereto to (but not including)
the last day of such Interest Period at the interest rate determined by the Administrative Agent as
applicable to such Eurodollar Advance based upon the Borrower's selections under Sections 2.7
and 2.8 and otherwise in accordance with the terms hereof. No Interest Period may end afer the
Facility Termination Date.
2.10. Rates Applicable After Default. Notwthstading anyting to the contrar
contained in Sections 2.7, 2.8 or 2.9, durng the continuance of a Default the Required Lenders
may, at their option, by notice to the Borrower, declare that no Advance may be made as,
converted into or continued as a Eurodollar Advance. Durng the continuace of a Default the
Required Lenders may, at their option, by notice to the Borrower, declare that (i) each Eurodollar
Advance shall bear interest for the remainder of the applicable Interest Period at the rate
otherwise applicable to such Interest Period plus 2% per anum and (ii) each Floating Rate
Advance shall bear interest at a rate per anum equal to the Alternate Base Rate in effect from
time to time plus 2% per anum; provided that during the continuance of a Default under
Sections 7(g) or 7(h), the interest rates set forth in clauses (i) and (ii) above shall be applicable
to all Advances without any election or action on the par of the Administrative Agent or any
Lender.
2.1 1. Method of Payment. All payments of the Obligations hereunder shall be made,
without setoff deduction, or counterclaim, in immediately available fuds to the Administrative
Agent at the Administrative Agent's address specified pursuant to Article 13, or at any other
Lending Installation of the Administrative Agent specified in writing by the Administrative
Agent to the Borrower, by 12:00 noon (local time) on the date when due and shall be applied
ratably by the Administrative Agent among the Lenders. Each payment delivered to the
Administrative Agentfor the account of any Lender shall be delivered promptly by the
Administrative Agent to such Lender in the same tye of fuds that the Administrative Agent
received at its address specified pursuant to Article 13 or at any Lending Installation specified in
a notice received by the Admistrative Agent from such Lender. The Administrative Agent is
hereby authorized to charge any account of the Borrower maintaied with JPMorgan for each
payment of pricipal, interest and fees as it becomes due hereunder.
2.12. Noteless Agreement; Evidence of Indebtedness.
(a) Each Lender shall maintain in accordance with its usua practice an
account or accounts evidencing the indebtedness of the Borrower to such Lender resulting from
each Loan made by such Lender from time to time, including the amounts of principal and
interest payable and paid to such Lender from time to time hereunder.
(b) The Admistrative Agent shall also maintan the Register pursuat to
Section 12.3(c) and subaccounts for each Lender in which (taken together) it wil record (a) the
15
amount of each Loan made hereunder, the Type thereof and the Interest Period (if any) with
respect thereto, (b) the amount of any principal or interest due and payable or to become due and
payable from the Borrower to each Lender hereunder, and (c) the amount of any sum received by
the Administrative Agent hereunder from the Borrower and each Lender's share thereof.
(c) The entres maintained in the accounts, Register and subaccounts
maintained pursuat to Sections 2.12(a) and (b) above shall be prima facie evidence of the
existence and amounts of the Obligations therein recorded; provided that the failure of the
Admnistrative Agent or any Lender to maintan such accounts, such Register or such
subaccount, as applicable, or any error therein shall not in any maner affect the obligation of the
Borrower to repay the Obligations in accordance with their terms.
(d) The Loans made by each Lender shall, if requested by the applicable
Lender (which request shall be made to the Administrative Agent), be evidenced by a Note,
appropriately completed and executed by the Borrower and payable to the order of such Lender.
Each Note shall be entitled to all of the benefits of this Agreement and the other Loan
Documents and shall be subject to the provisions hereof and thereof.
2.13. Telephonic Notices. The Borrower hereby authorizes the Lenders and the
Administrative Agent to extend, convert or continue Advances, effect selections of Types of
Advances and to transfer fuds based on telephonic notices made by any person or persons the
Administrative Agent or any Lender in good faith believes to be acting on behalf of the
Borrower, it being understood that the foregoing authorization is specifically intended to allow
the Borrowing Notice and Conversion/Continuation Notices to be given telephonically. The
Borrower agrees to deliver promptly to the Administrative Agent a wrtten confirmation, if such
confrmation is requested by the Administrative Agent or any Lender, of each telephonic notice
signed by an Authorized Offcer. If the written confirmation differs in any material respect from
the action taken by the Administrative Agent and the Lenders, the records of the Administrative
Agent and the Lenders shall govern absent manfest error.
2.14. Interest Payment Dates; Interest and Fee Basis.
(a) Interest accrued on each Floating Rate Advance shall be payable on each
Payment Date, commencing with the fist such date to occur afer the date hereof, on any date on
which such Floating Rate Advance is prepaid, whether due to acceleration or otherwse, and at
the Facilty Termination Date. Interest accred on that porton of the outstanding principal
amount of any Floating Rate Advance converted into a Eurodollar Advance on a day other than a
Payment Date shall be payable on the date of conversion.
(b) Interest accrued on each Eurodollar Advance shall be payable on the last
day of its applicable Interest Period, on any date on which the Eurodollar Advance is prepaid,
whether by acceleration or otherwse, and at the Facilty Termination Date. Interest accrued on
each Eurodollar Advance having an Interest Period longer than three months shall also be
payable on the last day of each thee-month interval durng such Interest Period.
(c) Interest on Floating Rate Advances bearng interest at the Prime Rate shall
be calculated for actu days elapsed on the basis of a 365, or when appropriate, 366 day year.
16
All other interest and all fees shall be calculated for actual days elapsed on the basis of a 360-day
year. Interest shall be payable for the day an Advance is made but not for the day of any
payment on the amount paid if payment is received prior to 12:00 noon (local time) at the place
of payment. If any payment of principal of or interest on an Advance shall become due on a day
which is not a Business Day, such payment shall be made on the next succeeding Business Day
(except for interest payments in respect of Eurodollar Advances whose Interest Period ends on a
day which is not a Business Day, and the next succeeding Business Day falls in a new calendar
month, in which case interest accrued on such Eurodollar Advance shall be payable on the
immediately preceding Business Day) and, in the case of a principal payment, such extension of
time shall be included in computing interest in connection with such payment.
2.15. Notification of Advances, Interest Rates, Prepayments and Commitment
Reductions. Promptly after receipt thereof, the Administrative Agent will notify each Lender of
the contents of the Borrowing Notice and each Conversion/Continuation Notice and repayment
notice received by it hereunder. The Administrative Agent will notify each Lender of the interest
rate applicable to each Eurodollar Advance promptly upon determination of such interest rate
and will give each Lender prompt notice of each change in the Alternate Base Rate.
2.16. Lending Installations. Each Lender may book its Loans at any Lending
Installation selected by such Lender and may change its Lending Instalation from time to time.
All terms of ths Agreement shall apply to any such Lending Installation and the Loans and any
Notes issued hereunder shall be deemed held by each Lender for the benefit of any such Lending
Installation. Each Lender may, by wrtten notice to the Administrative Agent and the Borrower
in accordance with Article 13, designate replacement or additional Lending Installations through
which Loans will be made by it and for whose account Loan payments are to be made.(
2.17. Non-Receipt of Funds by the Administrative Agent. Unless the Borrower or a
Lender, as the case may be, notifies the Administrative Agent prior to the date on which it is
scheduled to make payment to the Administrative Agent of (i) in the case of a Lender, the
proceeds of a Loan or (ii) in the case of the Borrower, a payment of principal, interest or fees to
the Administrative Agent for the account of the Lenders, that it does not intend to make such
paYment, the Administrative Agent may assume that such payment has been made. The
Administative Agent may, but shall not be obligated to, make the amount of such payment
available to the intended recipient in reliance upon such assumption. If such Lender or the
Borrower, as the case may be, has not in fact made such payment to the Administrative Agent,
the recipient of such payment shall, on demand by the Administrative Agent, repay to the
Administrative Agent the. amount so made available together with interest thereon in respect of
each day durng the period commencing on the date such amount was so made available by the
Administrative Agent until the date the Admstrative Agent recovers such amount at a rate per
anum equal to (x) in the case of paYment by a Lender, the Federal Funds Effective Rate for
such day for the first thee (3) days and, thereafer, the interest rate applicable to the relevant
Loan or (y) in the case of payment by the Borrower, the interest rate applicable to the relevant
Loan.
2.18. lReserved.l
(,
17
2.19. Replacement of Lender. If the Borrower is required pursuant to Sections 3.1, 3.2
or 3.S to make any additional payment to any Lender or if any Lender's obligation to make or
continue, or to convert Floating Rate Advances into, Eurodollar Advances shall be suspended
pursuant to Section 3.3 (any Lender so afected an "Afected Lender"), the Borrower may elect,
if such amounts continue to be charged or such suspension is stil effective, to replace such
Affected Lender as a Lender par to this Agreement, provided that no Default or Unmatued
Default shall have occured and be continuing at the time of such replacement, and provided
fuer that, concurently with such replacement, (i) another ban or other entity which is
reasonably satisfactory to the Borrower and the Administrtive Agent shall agree, as of such
date, to purchase for cash the Advances and other Obligations (excluding the amounts payable
by the Borrower pursuant to clause (ii) of this proviso) due to the Affected Lender pursuant to an
assignment substantially in the form of Exhibit C and to become a Lender for all plJoses under
this Agreement and to assume all obligations of the Affected Lender to be terminated as of such
date and to comply with the requirements of Section 12.3 applicable to assignents, and (ii) the
Borrower shall pay to such Affected Lender in same day fuds on the day of such replacement
(A) all interest, fees and other amounts then accrued but unpaid to such Affected Lender by the
Borrower hereunder to and including the date of termination, including payments due to such
Affected Lender under Sections 3.1,3.2 or 3.S, and (B) an amount, if any, equal to the payment
which would have been due to such Lender on the day of such replacement under Section 3.4
had the Loans of such Affected Lender been prepaid on such date rather than sold to the
replacement Lender.
ARTICLE 3
YIELD PROTECTION; TAXS
3.1. Yield Protection. If, on or afer the Closing Date, the adoption of any law or any
governental or quasi governenta rule, regulation, policy, guideline or directive (whether or
not having the force of law), or any change in the interpretation or administration thereof by any
governental or quasi-governental authority, central ban or comparable agency charged with
the interpretation or administration thereof, or compliance by any Lender or applicable Lending
Installation with any request or directive (whether or not having the force of law) of any such
authority, central ban or comparable agency:
(i) subjects any Lender or any applicable Lending Installation to any Taxes,
or changes the basis of taation of paYments (other than with respect to Excluded Taxes
or to any increased costs from taes which will be governed exclusively by Section 3.S)
to any Lender in respect of its Eurodollar Advances, or
(ii) imposes or increases or deems applicable any reserve, assessment,
insurance charge, special deposit or similar requirement against assets of, deposits with or
for the account of, or credit extended by, any Lender or any applicable Lending
Instalation (other than reserves and assessments taken into account in determining the
interest rate applicable to Eurodollar Advances), or
(iii) imposes any other condition the result of which is to increase the cost to
any Lender (or any applicable Lending Instalation) of makng, fuding or maintaining its
18
Eurodollar Advances, or reduces any amount receivable by any Lender (or any applicable
Lending Installation) in connection with its Eurodollar Advances, or requires any Lender
(or any applicable Lending Installation) to make any payment calculated by reference to
the amount of Eurodollar Advances held or interest received by it, by an amount deemed
material by such Lender,
and the result of any of the foregoing is to increase the cost to such Lender or applicable Lending
Installation of making or maintaining its Eurodollar Advances, or to reduce the retu received
by such Lender or applicable Lending Installation in connection with such Eurodollar Advances,
then, within fifteen (15) days of demand by such Lender, the Borrower shall pay such Lender
such additional amount or amounts as will compensate such Lender for such increased cost or
reduction in amount received.
(
3.2. Changes in Capita Adequacy Reguations. If a Lender determines the amount of
capita required or expected to be maintaned by such Lender, any Lending Installation of such
Lender, or any corporation controllng such Lender is increased as a result of a Change, then,
within fifteen (15) days of demand by such Lender, the Borrower shall pay such Lender the
amount necessary to compensate for any shortfall in the rate of retur on the portion of such
increased capital which such Lender determines is attbutable to this Agreement, its Outstanding
Credit Exposure or its Commitment to make Loans hereunder (after taing into account such
Lender's policies as to capital adequacy). "Change" means (i) any change after the Closing Date
in the Risk-Based Capital Guidelines, or (ii) any adoption of or chang~ in any other law,
governental or quasi governental rule, regulation, policy, guideline, interpretation, or
directive (whether or not having the force of law) afer the Closing Date which affects the
amount of capital required or expected to be maintained by any Lender or any Lending
Installation or any corporation controllng any Lender. "Risk-Based Capital Guidelines" means
(i) the risk based capital guidelines in effect in the United States on the Closing Date, including
transition rules, and (ii) the corresponding capital regulations promulgated by regulatory
authorities outside the United States implementing the July 1988 report of the Basle Committee
on Baning Regulation and Supervisory Practices Entitled "International Convergence of Capital
Measurements and Capital Stadards," including transition rues, and any amendments to such
regulations adopted prior to the Closing Date.
3.3 . Availabilty of Types of Advances. If any Lender determines that maintenance of
its Eurodollar Advances at a suitable Lending Installation would violate any applicable law, rue,
reguation, or directive, whether or not having the force of law, or if the Required Lenders
determine that (i) deposits of a tye and matuty appropriate to match fud Eurodollar Advances
are not available or (ii) the interest rate applicable to Eurodollar Advances does not accurately
reflect the cost of makng or maintaining Eurodollar Advances, then the Admnistrative Agent
shall suspend the availabilty of Eurodollar Advances and require any affected Eurodollar
Advances to be repaid or converted to Floating Rate Advances, subject to the payment of any
fuding indemnification amounts required by Section 3.4.
3 A. Funding Indemnification. If any payment of a Eurodollar Advance occurs on a
date which is not the last day of the applicable Interest Period, whether because of acceleration,
prepayment or otherwse, or a Eurodollar Advance is not made on the date specified by the
Borrower for any reason other than default by the Lenders, the Borrower will indemnify each
19
Lender for any loss or cost incured by it resulting therefrom, including any loss or cost in
liquidating or employing deposits acquired to fud or maintan such Eurodollar Advance.
3.5. Taxes.
(a) All payments by the Borrower to or for the account of any Lender or the
Administrative Agent hereunder or under any Note shall be made free and clear of and without
deduction for any and all Taxes. If the Borrower shall be required by law to deduct any Taxes
from or in respect of any sum payable hereunder to any Lender or the Administrative Agent, (a)
the sum payable shall be increased as necessar so that afer makng all required deductions
(including deductions applicable to additional sums payable under ths Section 3.S) such Lender
or the Administrative Agent (as the case may be) receives an amount equal to the sum it would
have received had no such deductions been made, (b) the Borrower shall make such deductions,
(c) the Borrower shall pay the full amount deducted to the relevant authority in accordance with
applicable law and (d) the Borrower shall fuish to the Administrative Agent the original copy
of a receipt evidencing payment thereof withn thirt (30) days after such payment is made.
(b) In addition, the Borrower hereby agrees to pay any present or future stamp
or documentar taxes and any other excise or property taxes, charges or similar levies which
arise from any payment made hereunder or under any Note or from the execution, delivery or
enforcement of, or otherwse with respect to, this Agreement or any Note ("Other Taxes").
(
(c) The Borrower hereby agrees to indemnify the Administrative Agent and
each Lender for the full amount of Taxes or Other Taxes (including any Taxes or Other Taxes
imposed on amounts payable under ths Section 3.S) paid by the Administrative Agent or such
Lender and any liabilty (including penalties, interest and expenses, provided that the
Administrative Agent and the Lenders shall use best efforts to avoid incurrence of the same)
arising therefrom or with respect thereto. Payments due under this indemnification shall be
made within thirty (30) days ofthe date the Administrative Agent or such Lender makes demand
therefor pursuant to Section 3.6.
(d) Each Lender (or Transferee) that is organized under the laws of a
jurisdiction other than the United States, any State thereof or the District of Columbia (a
''Non-U.S. Lender") that is entitled to an exemption from or reduction of withholding ta under
the law of the jursdiction in which the Borrower is resident for tax puroses, or any treaty to
which such jursdiction is a par, with respect to payments hereunder or under any other Loan
Document shall deliver to the Borrower (with a copy to the Administrative Agent), at the time or
times prescribed by applicable law or reasonably requested by the Borrower or the
Administrative Agent, such properly completed and executed documentation prescribed by
applicable law as wil permit such payments to be made without witholding or at a reduced rate
of witholding. In addition, any Lender, if requested by the Borrower or the Administrative
Agent, shall deliver such other documentation prescribed by applicable law or reasonably
requested by the Borrower or the Administrative Agent as wil enable the Borrower or the
Administrative Agent to determine whether or not such Lender is subject to backup withholding
or information reporting requirements.
""
20
Without limiting the generality of the foregoing, in the event that the Borrower is resident
for ta puroses in the United States of America, any Non-U.S. Lender shall deliver to the
Borrower and the Administrative Agent (in such number of copies as shall be requested by the
recipient) on or prior to the date on which such Non-U.S. Lender becomes a Lender under this
Agreement (and from time to time thereafter upon the request ofthe Borrower or the
Administrative Agent, but only if such Non-U.S. Lender is legally entitled to do so), whichever
of the following is applicable:
(i) duly completed copies of Internal Revenue Service Form W-8BEN
claiming eligibilty for benefits of an income tax treaty to which the United States of
America is a par,
(ii) duly completed copies of Internal Revenue Service Form W-8ECI,
(iii) duly completed copies of Internal Revenue Servce Form W-8IMY,
(iv) with respect to clauses (i) - (iii), any subsequent versions thereof or
successors thereto, in each case claiming complete exemption from, or reduced rate of,
U.S. Federal witholding tax and payments of interest hereunder,
(,
(v) in the case of a Non-U.S. Lender claiming the benefits of the exemption
for portfolio interest under section 871 (h) or 881(c) of the Code, (x) a certificate to the
effect that such Non-U.S. Lender is not (A) a "ban" for puroses of section 881 (c) of
the Code, (B) a "lO-percent shareholder" (withn the meaning of section 871 (h)(3)(B) ofthe Code) of the Borrower (or any Affiliate thereof) and (C) a "controlled foreign
corporation" related to the Borrower or any Affliate thereof (within the meaning of
section 864(d)(4) of the Code), and such Non-U.S. Lender agrees that it shall promptly
notify the Borrower in the event any of the above representations are no longer accurate
and (y) duly completed copies ofInternal Revenue Service Form W-8BEN, or
(vi) any other form prescribed by applicable law as a basis for claiming
exemption from or a reduction in United States Federal witholding tax duly completed
together with such supplementa documentation as may be prescribed by applicable law
to permt the Borrower to determine the witholding or deduction required to be made.
(e) For any period durg which a Non-U.S. Lender has failed to provide the
Borrower with an appropriate form pursuant to Section 3.S(d) (uness such failure is due to a
change in treaty, law or reguation, or any change in the interpretation or administration thereof
by any governental authority, occurng subsequent to the date on which a form originally was
required to be provided) or Section 3.S(f), such Lender shall not be entitled to indemnfication
under this Section 3.S with respect to Taxes; provided that, should a Non-U.S. Lender which is
otherwse exempt from or subject to a reduced rate of witholding ta become subject to Taxes
because of its failure to deliver a form required under Section 3.S( d), the Borrower shall take
such commercially-reasonable steps (at the cost of the Non-U.S. Lender) as such Non-U.S.
Lender shall reasonably request to assist such Non-U.S. Lender to recover such Taxes.
I"~
(f) Any Lender that is entitled to an exemption from or reduction of
withholding tax with respect to payments under this Agreement or any Note pursuat to the law
21
of any relevant jurisdiction or any treaty shall deliver to the Borrower (with a copy to the
Administrative Agent), at the time or times prescribed by applicable law, such properly
completed and executed documentation prescribed by applicable law as will permit such
payments to be made without witholding or at a reduced rate.
(g) If the U.S. Internal Revenue Service or any other governental authority
of the United States or any other country or any political subdivision thereof asserts a claim that
the Administrative Agent did not properly withhold ta from amounts paid to or for the account
of any Lender (because the appropriate form was not delivered or properly completed, because
such Lender failed to notify the Administrative Agent of a change in circumstaces which
rendered its exemption from witholding ineffective, or for any other reason), such Lender shall
indemnify the Administrative Agent fully for all amounts paid, directly or indirectly, by the
Administrative Agent as tax, withholding therefor, or otherwse, including penalties and interest,
and including taes imposed by any jursdiction on amounts payable to the Administrative Agent
under ths subsection, together with all costs and expenses related thereto (including attorneys
fees and time charges of attorneys for the Administrative Agent, which attorneys may be
employees of the Administrative Agent) and the Borrower shall have no liabilty pursuant to this
Agreement to the Administrative Agent with respect to such amounts. The obligations of the
Lenders under this Section 3.S(g) shall surive the payment of the Obligations and termination
of this Agreement.
(
(h) Any Lender or Administrative Agent claiming any indemnity payment or
additional payment amounts payable pursuant to ths Section 3.S shall use reasonable efforts
(consistent with legal and reguatory restrctions and at the cost of the Borrower) to file any
certificate or document reasonably requested in writing by the Borrower or to change the
jursdiction of its applicable lending office if the makng of such a filing or change (1) would
avoid the need for or reduce the amount of any such indemnity payment or additional amount
that may thereafter accrue, (2) would not require such Lender or the Agent to disclose any
information such Lender or the Administrative Agent deems confdential and (3) would not
subject such Lender or the Administrative Agent to any uneimbursed cost or expense and would
not otherwse be disadvantageous to such Lender or the Administrative Agent.
(i) Each Lender wil promptly notify the Borrower and the Administrative
Agent of any event of which it has knowledge, occurng after the date of this Agreement, which
will entitle such Lender to compensation pursuant to ths Section 3.S; provided that (i) if any
Lender fails to give such notice withn 180 days afer it obtains actual knowledge of such event
(or, in the exercise of ordinar due dilgence, should have obtaned actual knowledge thereof),
such Lender shall only be entitled to payments under this Section 3.S for costs incured from and
afer the date 180 days prior to the date that such Lender does give such notice.
3.6. Alternate Lending Installation; Lender Statements; Surival of Indemnity. To the
extent reasonably possible, each Lender shall designate an alternate Lending Instalation with
respect to its Eurodollar Advances to reduce any liabilty of the Borrower to such Lender under
Sections 3.1, 3.2 and 3.S or to avoid the unavailability of Eurodollar Advances under Section
3.3, so long as such designation is not, in the judgment of such Lender, disadvantageous to such
Lender. Each Lender shall deliver a written statement of such Lender to the Borrower (with a
I copy to the Administrative Agent) as to the amount due, if any, under Sections 3.1, 3.2, 3.4 or\,
22
3.S. Such wrtten statement shall set fort in reasonable detail the calculations upon which such
Lender determined such amount and shall be final, conclusive and binding on the Borrower in
the absence of manifest error. Determination of amounts payable under such Sections in
connection with a Eurodollar Advance shall be calculated as though each Lender fuded its
Eurodollar Advance though the purchase of a deposit of the tye and maturty corresponding to
the deposit used as a reference in determining the Eurodollar Rate applicable to such Loan,
whether in fact that is the case or not. Unless otherwse provided herein, the amount specified in
the wrtten statement of any Lender shall be payable on demand after receipt by the Borrower of
such wrtten statement. The obligations of the Borrower under Sections 3.1,3.2,3.4 and 3.5
shall surive payment of the Obligations and termination of ths Agreement.
ARTICLE 4
CONDITIONS PRECEDENT
4.1. Loans; Closing Date. The Lenders shall not be required to make the Loans
hereunder as described in Section 2.1, and the Closing Date shall not occur, unless:
(a) The Borrower has furnished to the Administrative Agent sufficient copies
for the Lenders of:
(
(i) Copies of the aricles or certificate of incorporation of the Borrower,
together with all amendments, and a certificate of good standing, each certified by the
appropriate governental offcer in its jurisdiction of incorporation.
(ii) Copies, certified by the Secretar or Assistant Secretar of the Borrower,
of its bylaws and of its Board of Directors' resolutions and of resolutions or actions of
any other body authorizing the execution of the Loan Documents.
(ii) An incumbency certificate, executed by the Secretar or Assistat
Secreta of the Borrower, which shall identify by name and title and bear the signatures
of the Authorized Offcers and any other offcers of the Borrower authorized to sign the
Loan Documents, upon which certificate the Administrative Agent and the Lenders shall
be entitled to rely until informed of any change in wrting by the Borrower.
(iv) A certficate, signed by an Authorized Offcer, certifyng the satisfaction
of the condition in Section 4.1(c) below.
(v) One or more wrtten legal opinions of the Borrower's counsel, addressed
to the Administrative Agent and the Lenders, dated as of the Closing Date, in form and
substance reasonably acceptable to the Administrative Agent and attched hereto as
Exhibit A.
(vi) Signature pages or counterpars to this Agreement and the Fee Letter.
(
(vii) Any Notes requested by a Lender pursuant to Section 2.12 payable to the
order of each such requesting Lender.
23
(viii) Written money transfer instrctions, in substatially the form of
Exhibit D, addressed to the Administrative Agent and signed by an Authorized Offcer,
together with such other related money transfer authorizations as the Administrative
Agent may have reasonably requested.
(ix) Such other documents as any Lender or its counsel may have reasonably
requested.
(b) The Lenders and the Administrative Agent shall have received all fees
required to be paid, and all expenses for which invoices have been presented, on or before the
Closing Date.
(c) No Default or Unmatued Default exists on or as of the Closing Date.
(d) The representations and waranties contaned in Aricle 5 shall be true and
correct on and as of the Closing Date except to the extent any such representation or waranty is
stated to relate solely to an earlier date, in which case such representation or waranty shall have
been true and correct on and as of such earlier date.
( e) All legal matters incident to the makng of such Loans shall be satisfactory
to the Lenders and their counsel.
ARTICLES
(REPRESENTATIONS AND WARTIES
The Borrower represents and warants to the Lenders that:
5. I . Existence and Standing. Each of the Borrower and its Subsidiares is a
corporation, parership (in the case of Subsidiaries only) or limited liability company duly and
properly incorporated or organzed, as the case may be, validly existing and (tó the extent such
concept applies to such entity) in good standing under the laws of its jursdiction of incorporation
or organization and has all requisite authority to conduct its business in each jurisdiction in
which its business is conducted, except to the extent that failure to do so could not reasonably be
expected to have a Material Adverse Effect.
5.2. Authorization and Validity. The Borrower ha the power and authority and legal
right to execute and deliver the Loan Documents and to perform its obligations thereunder. The
execution and delivery by the Borrower of the Loan Documents and the performance of its
obligations thereunder have been duly authorized by proper corporate proceedings, and the Loan
Documents constitute legal, valid and binding obligations of the Borrower enforceable against
the Borrower in accordance with their terms, except as enforceabilty may be limited by
banptcy, insolvency or similar laws afecting the enforcement of creditors' rights generally.
5.3. No Confict; Governent Consent. Neither the execution and delivery by the
Borrower of the Loan Documents, nor the consumation of the transactions therein
contemplated, nor compliance with the provisions thereof will violate, except to the extent that
such violation, alone or in the aggregate, could not reasonably be expected to have a Material
24
Adverse Effect, (i) any law, rule, regulation, order, writ, judgment, injunction, decree or award
binding on the Borrower or any of its Subsidiaries or (ii) the Borrower's or any Subsidiar's
aricles or certificate of incorporation, partership agreement, certificate of parership, artcles
or certificate of organization, bylaws, or operating or other management agreement, as the case
may be, or (ii) the provisions of any indentue, instrent or agreement to which the Borrower
or any of its Subsidiaries is a par or is subject, or by which it, or its Property, is bound, or
conflct with or constitute a default thereunder, or result in, or require, the creation or imposition
of any Lien in, of or on the Property of the Borrower or a Subsidiar pursuant to the terms of any
such indentue, instrent or agreement. No order, consent, adjudication, approval, license,
authorization, or validation of, or filing, recording or registration with, or exemption by, or other
action in respect of any governental or public body or authority, or any subdivision thereof,
which has not been obtained by the Borrower or any of its Subsidiares, is required to be
obtained by the Borrower or any of its Subsidiares in connection with the execution and delivery
of the Loan Documents, the borrowings under this Agreement, the payment and pedormance by
the Borrower of the Obligations or the legality, validity, binding effect or enforceabilty of any of
the Loan Documents.
SA. Financial Statements. The December 31,2007 consolidated financial statements
of the Borrower and its Subsidiaries heretofore delivered to the Lenders were prepared in
accordance with the Agreement Accounting Principles in effect on the date such statements were
prepared and fairly present the consolidated financial condition and operations of the Borrower
and its Subsidiares at such date and the consolidated results of their operations for the period
then ended.
5.5. Material Adverse Change. Since December 31, 2007, there has been no change in
the business, Property, condition (financial or otherwse) or results of operations of the Borrower
and its Subsidiares which could reasonably be expected to have a Material Adverse Effect.
5.6. Taxes. The Borrower and its Subsidiares have filed all material United States
federal ta returs and all other tax retus which are required to be filed and have paid all taes
due pursuant to said returs or pursuant to any assessment received by the Borrower or any of its
Subsidiares, except such taxes, if any, as are being contested in good faith and as to which
adequate reserves have been provided in accordance with Agreement Accounting Principles. No
tax liens have been fied and no claims are being asserted with respect to any such taes claimed
to be due and payable that would, if adversely determed, have a Material Adverse Effect. The
charges, accruals and reserves for taxes on the books of the Borrower and its Subsidiares (to the
extent in excess of $5,000,000) are adequate under Agreement Accounting Priciples.
Notwthstanding any provision in this Agreement to the contrar, the only representations and
waranties made by the Borrower with respect to matters relating to taxes shall be the
representations and waranties set forth in ths Section S.6, and this Agreement shall not be
interpreted in any maner that is contrar hereto.
5.7. Litigation and Contingent Obligations. Except as set fort in the most recent
consolidated financial statements provided to the Administrative Agent pursuant to Section S.4
or Section 6.1, respectively, there is no litigation, arbitration, governental investigation,
proceeding or inquiry pending or, to the knowledge of any of their offcers, theatened against or
afecting the Borrower or any of its Subsidiares which could reasonably be expected to have a
25
Material Adverse Effect or which seeks to prevent, enjoin or delay the making of the Loans.
Other than any liability incident to any litigation, arbitration or proceeding, which, if decided
adversely, would not reasonably be expected to have a Material Adverse Effect, the Borrower
has no material contingent liabilties or obligations not provided for or disclosed in the most
recent consolidated financial statements provided to the Administrative Agent pursuant to
Section S.4 or Section 6.1, respectively.
5.8. Subsidiares. Schedule 5.8 contans an accurate list of all Subsidiares of the
Borrower as of the Closing Date, setting fort their respective jurisdictions of organization and
the percentage of their respective capital stock or other ownership interests owned by the
Borrower or other Subsidiaries. All of the issued and outstanding shares of capital stock or other
ownership interests of such Subsidiaries have been (to the extent such concepts are relevant with
respect to such ownership interests) duly authorized and issued and are fully paid and
nonassessable.
5.9. ERISA. The Unfuded Liabilities of all Single Employer Plans do not in the
aggregate exceed $75,000,000. Neither the Borrower nor any other member of the Controlled
Group has incured, or is reasonably expected to incur, any withdrawal liabilty to
Multiemployer Plans in excess of $25,000,000 in the aggregate. Each Plan complies in all
material respects with all applicable requirements of law and regulations, no Reportble Event
has occured with respect to any Plan, neither the Borrower nor any other member of the
Controlled Group has withdrawn from any Plan or initiated steps to do so, and no steps have
been taken to reorganize or terminate any Plan.
( 5.10. Accuracy of Information. No information, exhibit or report furnished by the
Borrower or any of its Subsidiares to the Administrative Agent, the Arranger or to any Lender in
connection with the negotiation of, or compliance with, the Loan Documents contained any
material misstatement of fact or omitted to state a material fact or any fact necessary to make the
statements contained therein not misleading.
5.11. Regulation U. Margin stock (as defined in Regulation U) constitutes less than
25% of the value of those assets of the Borrower and its Subsidiares which are subject to any
limitation on sale, pledge, or other restrction hereunder.
5.12. Material Agreements. Except as set fort in Schedule S.12, neither the Borrower
nor any Subsidiar is a par to any agreement or instrent or subject to any charer or other
corporate restrction (a) which either prohibits or restricts the abilty of any Subsidiary of
Borrower to declare or pay dividends to.the Borrower, or (b) which could reasonably be expected
to have a Material Adverse Effect. Neither the Borrower nor any Subsidiar is in default in the
performance, observance or fufillment of any of the obligations, covenants or conditions
contained in (i) any agreement to which it is a par, which default could reasonably be expected
to have a Material Adverse Effect or (ii) any agreement or instrent evidencing or governing
Material Indebtedness, which default could reasonably be expected to have a Material Adverse
Effect.
5.13. Compliance With Laws. The Borrower and its Subsidiaries have complied with
all applicable statutes, rules, regulations, orders and restrctions of any domestic or foreign
26
governent or any instrmentality or agency thereof having jursdiction over the conduct of their
respective businesses or the ownership of their respective Property except for any failure to
comply with any of the foregoing which could not reasonably be expected to have a Material
Adverse Effect.
5.14. Ownership of Propertes. Except as set forth on Schedule S.14, as of the Closing
Date, the Borrower and its Subsidiares will have good title, free of all Liens other than those
pennitted by Section 6.11, to all of the Propert and assets reflected in the Borrower's most
recent consolidated financial statements provided to the Administrative Agent as owned by the
Borrower and its Subsidiaries.
5. I 5. Plan Assets; Prohibited Tranactions. The Borrower is not an entity deemed to
hold "plan assets" within the meaning of 29 C.F.R. § 2510.3- 1 0 I of an employee benefit plan (as
dermed in Section 3(3) of ERISA) which is subject to Title I of ERISA or any plan (within the
meanng of Section 4975 of the Code), and neither the execution of this Agreement nor the
makng of the Loans hereunder gives rise to a prohibited transaction within the meaning of
Section 406 of ERISA or Section 4975 of the Code.
(
5.16. Environmenta Matters. In the ordinar course of its business, the Borrower
considers the effect of Environmental Laws on the business of the Borrower and its Subsidiares,
in the course of which it identifies and evaluates potential risks and liabilties accruing to the
Borrower due to Environmental Laws. On the basis of this consideration, the Borrower has
concluded that the potential risks and liabilties accruing to the Borrower due to Environmental
Laws could not reasonably be expected to have a Material Adverse Effect. Neither the Borrower
nor any Subsidiar has received any notice to the effect that its operations are not in material
compliance with any of the requirements of applicable Environmenta Laws or are the subj ect of
any federal or state investigation evaluating whether any remedial action is needed to respond to
a release of any toxic or hazardous waste or substance into the environment, which
noncompliance or remedial action could reasonably be expected to have a Material Adverse
Effect.
5.17. Investment Company Act. The Borrower is not an "investment company" or a
company "controlled" by an "investment company", within the meaning of the Investment
Company Act of 1940.
5.18. OFAC; PATRIOT Act.
(a) Neither the Borrower or any of its Subsidiares is a Sanctioned Person or
does business in a Sanctioned Country or with a Sanctioned Person in violation of the economic
sanctions of the United States administered by OFAC.
(b) Each of the Borrower and its Subsidiaries is in compliance in all material
respects with the PATRIOT Act. No par of the proceeds of the Loans hereunder will be used,
directly or indirectly, for any payments to any governenta offcial or employee, political pary,
offcial of a political par, candidate for political offce, or anyone else acting in an offcial
capacity, in order to obtain, retan or direct business or obtain any improper advantage, in
violation of the United States Foreign Corrpt Practices Act of 1977, as amended.
27
l
(
ARTICLE 6
COVENANTS
Durng the term of this Agreement, unless the Required Lenders shall otherwse consent
in writing:
6. I. Financial Reporting. The Borrower wil maintain, for itself and each Subsidiar,
a system of accounting established and administered in accordance with the Agreement
Accounting Principles, and furnish to the Administrative Agent in suffcient copies for each of
the Lenders:
(
(i) Within one hundred twenty (120) days after the close of each of its fiscal
years (or, if earlier, withn thirt (30) days afer the Borrower is required to file its
Anual Report on Form 10-K with the Securities and Exchange Commission for such
fiscal year), an unqualified (except for qualifications relating to changes in Agreement
Accounting Principles or practices reflecting changes in Agreement Accounting
Principles and required or approved by the Borrower's independent registered public
accountants) audit report certified by independent registered public accountants
reasonably acceptable to the Lenders, prepared in accordance with the Agreement
Accounting Principles on a consolidated and consolidating basis (consolidating
statements need not be certified by such accountants) for itself and its Subsidiares,
including balance sheets as of the end of such period, related profit and loss and
reconciliation of surlus statements, and a statement of cash flows. Delivery by the
Borrower to the Administrative Agent of copies of the Borrower's Anual Report on
Form 10-K fied with the Securties and Exchange Commission for any year shall satisfy
the Borrower's obligation under this clause (i) with respect to such year.
(ii) Within sixty (60) days after the close of the first three quarterly periods of
each of its fiscal years (or, if earlier, within fifteen (I 5) days after the Borrower is
required to file its Quarerly Report on Form lO-Q for with the Securties and Exchange
Commission for such period), consolidated and consolidating unaudited balance sheets as
at the close of each the first thee quarerly periods of each of its fiscal years, for itself
and its Subsidiares and consolidated and consolidating profit and loss and reconcilation
of surlus statements and a statement of cash flows for the period from the beginning of
such fiscal year to the end of such quaer, all certified by an Authorized Offcer.
Delivery by the Borrower to the Adminstrative Agent of copies of the Borrower's
Quarerly Report on Form 10-Q filed with the Securties and Exchange Commssion for
any quarer shall satisfy the Borrower's obligation under this clause (ii) with respect to
such quarer.
(iii) Together with the financial statements required under Sections 6.1(i) and
(ii), (A) a compliance certificate in substatially the form of Exhibit B signed by an
Authorized Offcer showing the calculations necessar to determine compliance with this
Agreement and statig that no Default or Unmatued Default exists, or if any Default or
Unmatued Default exists, stating the natue and status thereof and (B) a calculation of
28
the Indebtedness secured by Liens permitted under Section 6.11(xii) in such form as is
reasonably satisfactory to the Administrative Agent.
(iv) As soon as possible and in any event within ten (10) days afer the
Borrower knows that any Reportable Event has occured with respect to any Plan, a
statement, signed by an Authorized Offcer, describing said Reportable Event and the
action which the Borrower proposes to tae with respect thereto.
(v) As soon as possible and in any event within ten (10) days after receipt by
the Borrower, a copy of (a) any notice or claim to the effect that the Borrower or any of
its Subsidiares is or may be liable to any Person as a result of the release by the
Borrower, any of its Subsidiares, or any other Person of any toxic or hazardous waste or
substace into the environment, and (b) any notice alleging any violation of any federal,
state or local environmental, health or safety law or regulation by the Borrower or any of
its Subsidiaries, which, in either case, could reasonably be expected to have a Material
Adverse Effect.
(vi) Promptly upon the fuishing thereof to the shareholders of the Borrower
or the Parent, copies of all financial statements and reports so furnished.
(vii) Promptly upon the filing thereof, copies of all registration statements and
anual, quarerly, monthly or other regular reports which the Borrower or any of its
Subsidiares files with the Securties and Exchange Commission.
(viii) Such other information (including nonfinancial information) as the
Administrative Agent or any Lender may from time to time reasonably request.
6.2. Use of Proceeds. The Borrower will, and will cause each Subsidiar to, use the
proceeds of the Loans solely (a) to purchase (i) the $116,300,000 Sweetwater County, Wyoming
Pollution Control Revenue Refuding Bonds (Idaho Power Company Project) Series 2006 and
(ii) the $49,800,000 Humboldt County, Nevada Pollution Control Revenue Refuding Bonds
(Idaho Power Company Project) Series 2003 (collectively, the "Bonds"), (b) for the paYment of
interest, fees and expenses incured in connection with the Bonds and (c) for the paYment of
interest, fees and expenses incured in connection with ths Agreement.
6.3. Notice of Default, etc. The Borrower will, and will cause each Subsidiar to, give
prompt notice in wrting to the Lenders of the occurence of (i) any Default or UnmatuedDefault and (ii) the commencement of or any ruling in any litigation, or any other development,
financial or otherwise, which could reasonably be expected to have a Material Adverse Effect.
604. Conduct of Business. The Borrower will, and wil cause each Material Subsidiar
to, car on and conduct its business in substatially the same maner and in substantially the
same fields of enterprise as it is presently conducted and do all things necessar to remain duly
incorporated or organzed, validly existing and (to the extent such concept applies to such entity)
in good stading as a domestic corporation, partership or limited liabilty company in its
jursdiction of incorporation or organzation, as the case may be, and maintain all requisite
authority to conduct its business in each jursdiction in which its business is conducted, except
where the failure to do so could not reasonably be expected to have a Material Adverse Effect.(
29
(
6.5. Taxes. The Borrower wil, and will cause each Subsidiar to, timely fie complete
and correct United States federal and applicable foreign, state and local tax retus required by
law and pay when due all taxes, assessments and governental charges and levies upon it or its
income, profits or Property, except those which are being contested in good faith by appropriate
proceedings and with respect to which adequate reserves have been set aside in accordance with
Agreement Accounting Priciples.
6.6. Insurance. The Borrower wil, and will cause each Subsidiar to, maintain with
financially sound and reputable insurance companies insurance on all their Propert in such
amounts and covering such risks as is consistent with sound business practice, and the Borrower
will fuish to any L~nder upon request full information as to the insurance cared.
6.7. Compliance with Laws. The Borrower will, and will cause each Subsidiar to,
comply in all material respects with all laws, rules, reguations, orders, wrts, judgments,
injunctions, decrees or awards to which it may be subject, including all Environmental Laws.
6.8. Maintenance of Properties. The Borrower will, and will cause each Subsidiar to,
do all thngs necessary to maintain, preserve, protect and keep its Property in good repair,
workig order and condition, and make all necessar and proper repairs, renewals and
replacements so that its business cared on in connection therewith may be properly conducted
at all times.
(
6.9. Inspection. The Borrower wil, and will cause each Subsidiar to, permit the
Administrative Agent and the Lenders, by their respective representatives and agents, to inspect
any of the Propert, books and financial records of the Borrower and each Subsidiar, to
examine and make copies of the books of accounts and other financial records of the Borrower
and each Subsidiar, and to discuss the affairs, finances and accounts of the Borrower and each
Subsidiar with, and to be advised as to the same by, their respective offcers at such reasonable
times and intervals as the Administrative Agent or any Lender may designate.
6.10. Merger and Sale of Assets. Without the prior wrtten consent of the Required
Lenders (such consent not to be uneasonably witheld), the Borrower wil not, nor will it permit
any Material Subsidiar to, merge or consolidate with or into any other Person, or sell or
otherwse dispose of all or substantially all of its Propert to another Person except that (i) a
Material Subsidiar may rnerge into the Borrower or a Wholly-Owned Subsidiar, (ii) a Material
Subsidiar may dispose of all or substtially all of its Propert to the Borrower or a Wholly-
Owned Subsidiar, or (ii) the Borrower or any Subsidiar may sell, trsfer, contrbute, convey
or dispose of accounts, general intangibles and/or chattel paper (each as defined in Aricle 9 of
the Uniform Commercial Code) and associated collatera, lockbox and other collection accounts,
records and/or proceeds in connection with a Permitted Receivables Securitization.
6.11. Liens. The Borrower will not, nor will it permt any Material Subsidiar to,
create, incur, or suffer to exist any Lien in, of or on the Property of the Borrower or any Material
Subsidiar, except:
(
(i) Liens for taxes, assessments or governental charges or levies on its
Property if the saiï1e shall not at the time be delinquent or thereafter can be paid without
30
penalty, or are being contested in good faith and by appropriate proceedings and for
which adequate reserves in accordance with Agreement Accounting Principles shall have
been set aside on its books;
(ii) Liens imposed by law, such as carers', warehousemen's and mechancs'
liens and other similar liens arsing in the ordinar course of business which secure
payment of obligations not more than sixty (60) days past due or which are being
contested in good faith by appropriate proceedings and for which adequate reserves shall
have been set aside on its books;
(iii) Liens arising out of pledges or deposits under worker's compensation
laws~ unemployment insurance, old age pensions, or other social security or retirement
benefits, or similar legislation;
(iv) Utilty easements, building restrctions and such other encumbrances or
charges against real propert as are of a natue generally existing with respect to
properties of a similar character and which do not in any material way affect the
marketability of the same or interfere with the use thereof in the business of the Borrower
or its Subsidiares;
(v) Liens existing on the date hereof and described in Schedule S.14;
(
(vi) Liens on Property of the Borrower or any of its Material Subsidiaries
created solely for the purose of securing Indebtedness incured to fud the purchase
price of Propert, provided that no such Lien shall extend to or cover any other Property
of the Borrower or its Material Subsidiares other than the Property so acquired and the
original principal amount of the Indebtedness so secured by any such Lien shall not
exceed the original purchase price of the Propert so acquired;
(vii) The Lien of the First Mortgage and any Lien described in any deeds or
other instrments under which property has been conveyed to the Borrower and to which
the Lien of the First Mortgage is expressly made subject;
(viii) Any Lien existing on any property or asset prior to the Acquisition thereof
by the Borrower or any Material Subsidiar provided that the Acquisition is permtted
under Section 6.13 and such Lien is not created in contemplation of or in connection with
such Acquisition;
(ix) Liens arsing under a Permitted Receivables Securtization;
\,
(x) Liens arsing by operation oflaw with respect to any deposit, securities
and commodity account; provided that (a) the right of the Borrower or the applicable
Material Subsidiar to withdraw assets from such account shall not be restricted other
than by customar rules of general application (such as restrctions on withdrawals during
the time required for a check to clear); and (b) such account is not intended by the
Borrower or any Material Subsidiar to provide collatera to the applicable depository
institution, securities intermediar or commodities intermediar;
31
(
(xi) Liens in favor of the Administrative Agent hereunder;
(xii) Any Lien arsing out of the refinancing, extension, or renewal of any
Indebtedness secured by any Lien permitted by clause (v) of this Section 6.11; provided
that such Indebtedness is not increased and is not secured by any additional assets; and
(xiii) (A) Liens incured by the Borrower or the Parent in connection with Rate
Management Transactions entered into by either the Borrower or the Parent in the
ordinar course of business and not for speculation and in accordance with its established
risk management policies, and (B) other Liens incured by the Borrower or the Parent in
the ordinary course of business, provided that the aggregate principal amount of the
Indebtedness' secured by the Liens permitted under this clause (xiii) shall not exceed
$50,000,000 at anyone time outstading.
6.12. Leverage Ratio. The Borrower wil not permit the ratio, determined as of the end
of each of its fiscal quarters, of (i) Consolidated Indebtedness to (ii) Consolidated Total
Capitalization to be greater than 0.65 to i .0.
(
6.13. Investments and Acquisitions. Without the prior wrtten consent of the Required
Lenders (such consent not to be uneasonably withheld), the Borrower wil not, nor wil it pennit
any Subsidiary to, make or suffer to exist any Investments (including loans and advances to, and
other Investments in, Subsidiaries, or commitments therefor, or to create any Subsidiar or to
become or remain a parner in any parnership or joint ventue), or to make any Acquisition of
any Person, except:
(i) Cash Equivalent Investments and Investments permitted by the investment
policies approved from time to time by the board of directors of the Borrower or the
relevant Subsidiar, as applicable;
(ii) Investments in, and loans and advances to, Subsidiaries existing as of the
date hereof and other Investments existing as of the date hereof;
(iii) Investments by Subsidiaries in securties of the Borrower and Investments
by the Borrower and its Subsidiaries in any business trust controlled, directly or
indirectly, by the Borrower to the extent such business trst purchases securities of the
Borrower;
(iv) In addition to Investments otherwse pennitted hereunder, Investments and
Acquisitions related to the energy business of the Borrower and its Subsidiaries made
after the date hereof in an aggregate amount not exceeding $750,000,000 at anyone time
outstading; and
(v) Investments by the Borrower or a Subsidiar in connection with a
Permtted Receivables Securitization.
6.14. Subsidiar Dividend Restrctions. The Borrower wil not, nor will it permit any
Material Subsidiar to, become a pary to any agreement prohibiting or restrcting the abilty of
such Material Subsidiar to declare or pay dividends to the Borrower, except as disclosed in
32
Schedule 5.12, other than prohibitions or restrctions in connection with a Permitted Receivables
Securitization.
6.15. Affliates. The Borrower will not, fu'1d will not permit any Subsidiar to, enter
into any transaction (including the purchase or sale of any Propert or service) with, or make any
payment or transfer to, any Affliate that is not a Subsidiar except in the ordinar course of
business and pursuant to the reasonable requirements of the Borrower's or such Subsidiar's
business and upon fair and reasonable terms no less favorable to the Borrower or such Subsidiar
than the Borrower or such Subsidiar would obtan in a comparable ars-lengt transaction;
provided, that for the avoidance of doubt, nothng contained in this Section 6.15 shall prohibit
i the Borrower from paying dividends to the Parent.
6.16. OF AC, PATROT Act Compliance. The Borrower will, and will cause each of its
Subsidiares to, (i) refrain from doing business in a Sanctioned Countr or with a Sanctioned
Person in violation of the economic sanctions of the United States administered by OFAC, and
(ii) provide, to the extent commercially reasonable, such information and take such actions as are
reasonably requested by the Administrative Agent or any Lender in order to assist the
Administrative Agent and the Lenders in maintaining compliance with the PATRIOT Act.
ARTICLE 7
DEFAULTS
(
The occurence of anyone or more of the following events shall constitute a Default:
(a) Any representation or waranty made by or on behalf of the Borrower or
any of its Subsidiaries to the Lenders or the Administrative Agent under or in connection with
this Agreement or any Loan Document, any Loans, or any report, certificate, financial statement
or other information delivered in connection with this Agreement or any other Loan Document
shall be false in any material respect when so made, deemed made or delivered.
(b) Nonpayment of principal of any Loan when due; or nonpayment of
interest on any Loan, any fee payable by the Borrower hereunder or any other obligation under
any of the Loan Documents within five (5) days after the same becomes due.
( c) The breach by the Borrower of any of the terms or provisions of Section
6.2. 6.3(i) (and (i) in the case of failure to deliver notice of a Default arsing under Section 7( d),
five (5) days shall have elapsed after an Authorized Officer obtained knowledge of such Default,
and (ii) in the case of failure to deliver notice of a Default arsing under Section 7( e), twenty (20)
days shall have elapsed afer an Authorized Officer obtained knowledge of such Default), 6.10,
6.11, 6.12 or 6.13.
(d) The breach by the Borrower (other than a breach which constitutes a
Default under another Section of ths Article 7) of any of the terms or provisions of Section 6.9
or 6.14 which is not remedied within five (5) days after wrtten notice from the Administrative
Agent or any Lender.
33
(e) The breach by the Borrower (other than a breach which constitutes a
Default under another Section of this Article 7) of any ofthe terms or provisions of this
Agreement which is not remedied within twenty (20) days after wrtten notice from the
Administrative Agent or any Lender.
(f) Failure of the Borrower or any of its Subsidiares to pay when due any
Material Indebtedness; or the default by the Borrower or any of its Subsidiaries in the
performance of any term, provision or condition contained in any agreement under which any
such Material Indebtedness was created or is governed, or any other event shall occur or
condition exist, the effect of which default or event is to cause, or to permit the holder or holders
of such Material Indebtedness to cause, such Material Indebtedness to become due prior to its
stated matuty; or any Material Indebtedness of the Borrower or any of its Subsidiares shall be
declared to be due and payable or required to be prepaid or repurchased (other than by a
regularly scheduled payment) prior to the stated matuty thereof; or the Borrower or any of its
Subsidiaries shall not pay, or admit in wrting its inabilty to pay, its debts generally as they
become due.
(,
(g) The Borrower or any of its Material Subsidiares shall (i) have an order for
relief entered with respect to it under the Federal banptcy laws as now or hereafer in effect,
(ii) make an assignent for the benefit of creditors, (iii) apply for, seek, consent to, or acquiesce
in, the appointment of a receiver, custodian, trstee, examiner, liquidator or similar offcial for it
or any Substantial Portion of its Propert, (iv) institute any proceeding seeking an order for relief
under the Federal banptcy laws as now or hereafer in effect or seeking to adjudicate it a
banpt or insolvent, or seeking dissolution, winding up, liquidation, reorganization,
arangement, adjustment or composition of it or its debts under any law relating to banptcy,
insolvency or reorganzation or relief of debtors or fail to file an answer or other pleading
denying the material allegations of any such proceeding filed against it, (v) take any corporate or
parership action to authorize or effect any of the foregoing actions set forth in this Section 7(g)
or (vi) fail to contest in good faith any appointment or proceeding described in Section 7(h).
(h) Without the application, approval or consent of the Borrower or any of its
Subsidiares, a receiver, trstee, examiner, liquidator or similar offcial shall be appointed for the
Borrower or any of its Material Subsidiares or any Substantial Portion of its Propert, or a
proceeding described in Section 7(g) shall be instituted against the Borrower or any of its
Material Subsidiares and such appointment continues undischarged or such proceeding
continues undismissed or unstayed for a period of sixty (60) consecutive days.
(i) Any cour, governent or governenta agency shall condemn, seize or
otherwse appropriate, or tae custody or control of (each, a "Condemnation"), all or any portion
of the Propert of the Borrower and its Subsidiares which, when taken together with all other
Propert of the Borrower and its Subsidiares so condemned, seized, appropriated, or taken
custody or control of, during the twelve-month period ending with the month in which any such
action occur, constitutes a Substantial Porton; provided that the term "Condemnation" shall not
include any voluntar transfer by the Borrower or any of its Subsidiares of its electronic
transmission line facilities, or any interest therein, to a regional independent grid operator.
34
G) The Borrower or any of its Subsidiares shall fail within thirt (30) days to
pay, bond or otherwse discharge one or more (i) judgments or orders for the payment of money
in excess of $25,000,000 (or the equivalent thereof in curencies other than U.S. Dollars) in the
aggregate, or (ii) nonmoneta judgments or orders which, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect, whichjudgment(s), in any such case,
is/are not stayed on appeal or otherwse being appropriately contested in good faith.
(k) The Unfded Liabilities of all Single Employer Plans shall exceed in the
aggregate $75,000,000 or any Reportable Event shall occur in connection with any Plan, or the
Borrower or any other member of the Controlled Group shall have been notified by the sponsor
of a Multiemployer Plan that it has incurred withdrawal liabilty to such Multiemployer Plan in
an amount which, when aggregated with all other amounts required to be paid to Multiemployer
Plans by the Borrower or any other member of the Controlled Group as withdrawal liabilty
(determined as of the date of such notification), exceeds $25,000,000.
(1) The Borrower or any of its Subsidiares shall (i) be the subject of any
proceeding or investigation pertining to the release by the Borrower, any of its Subsidiaries or
any other Person of any toxic or hazdous waste or substance into the environment, or (ii)
violate any Environmenta Law, which, in the case of an event described in clause (i) or clause
(ii), could reasonably be expected to have a Material Adverse Effect.
(m) Any Change in Control shall occur.
(
(n) The Parent shall cease to own, free and clear of all Liens, 100% of the
outstanding shares of voting stock of the Borrower.
ARTICLE 8
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
8.1. Acceleration.
(a) Ifany Default described in Sections 7(g) or 7(h) occurs with respect to the
Borrower, the obligations of the Lenders to make Loans hereunder shall automatically terminate
and the Obligations shall immediately become due and payable without any election or action on
the par of the Administrative Agent or any Lender. If any other Default occurs, the Required
Lenders (or the Administrative Agent with the consent of the Required Lenders) may termnate
or suspend the obligations of the Lenders to make Loans hereunder or declare the Obligations to
be due and payable, or both, whereupon the Obligations shall become immediately due and
payable, without presentment, demand, protest or notice of any kind, all of which the Borrower
hereby expressly waives.
(\,
(b) If, with foureen (14) days after acceleration of the matuty of the
Obligations or termination of the obligations of the Lenders to make Loans hereunder as a result
of any Default (other than any Default as described in Sections 7 (g) or 7 (h) with respect to the
Borrower) and before any judgment or decree for the payment of the Obligations due shall have
been obtained or entered, the Required Lenders (in their sole discretion) shall so direct, the
35
(
Administrative Agent shall, by notice to the Borrower, rescind and anul such acceleration
and/or termination.
8.2. Amendments. Neither this Agreement or any other Loan Document nor any
provision hereof or thereof may be waived, amended or modified except pursuant to an
agreement or agreements in wrting entered into by the Borrower and the Required Lenders (or
by the Administrative Agent'at the direction or with the consent of the Required Lenders);
provided, however, that no such agreement shall:
(i) unless agreed to by each Lender directly affected thereby, (i) reduce or
forgive the principal amount of any Loan, reduce the rate of or forgive any interest
thereon (provided that only the consent of the Required Lenders shall be required to
waive the applicabilty of any post-default increase in interest rates), or reduce or forgive
any fees hereunder, (ii) extend the scheduled date for the payment of any principal of or
interest on any Loan (including any scheduled date for the mandatory reduction or
termination of any Commitments), or extend the time of payment of any fees hereunder,
or (iii) increase any Commitment of any such Lender over the amount thereof in effect or
extend the maturty thereof;
(ii) unless agreed to by all of the Lenders, (A) modify the defintion of the
term "Required Lenders", or (B) change or waive any provision of Section 11.2, any
other provision of ths Agreement or any other Loan Document requiring pro rata
treatment of any Lenders, or this Section 8.2; and
((iii) unless agreed to by the Administrative Agent, no such agreement shall
amend, modify or otherwise afect the rights or duties of the Administrative Agent
hereunder without the prior wrtten consent of the Administrative Agent.
8.3. Preservation of Rights. No delay or omission of the Lenders or the
Administrative Agent to exercise any right under the Loan Documents shall impair such right or
be constred to be a waiver of any Default or an acquiescence therein, and the makng of any
Loans notwthstanding the existence of a Default or the inabilty of the Borrower to satisfy the
conditions precedent to such Loans shall not constitute any waiver or acquiescence. Any single
or paral exercise of any such right shall not preclude other or fuer exercise thereof or the
exercise of any other right, and no waiver, amendment or other varation of the terms, conditions
or provisions of the Loan Documents whatsoever shall be valid uness in wrting signed by the
Lenders required pursuant to Section 8.2, and then only to the extent specifically set fort in
such wrting. All remedies contained in the Loan Documents or by law aforded shall be
cumulative and all shall be available to the Administrative Agent and the Lenders until the
Obligations have been paid in full.
ARTICLE 9
GENERAL PROVISIONS
9.1. Surival of Representations. All representations and waranties of the Borrower
contained in ths Agreement shall surive the making of the Loans herein contemplated.
36
9.2. Governental Reguation. Anything contained in this Agreement to the contrar
notwthstading, no Lender shall be obligated to extend credit to the Borrower in violation of any
limitation or prohibition provided by any applicable statute or regulation.
9.3. Headings. Section headings in the Loan Documents are for convenience of
reference only, and shall not govern the interpretation of any of the provisions of the Loan
Documents.
904. Entire Agreement. The Loan Documents embody the entire agreement and
understanding among the Borrower, the Administrative Agent and the Lenders and supersede all
prior agreements and understadings among the Borrower, the Administrative Agent and the
Lenders relating to the subject matter thereof.
('.
9.5. Several Obligations; Benefits of this Agreement. The respective obligations of
the Lenders hereunder are several and not joint and no Lender shall be the parer or agent of any
other (except to the extent to which the Administrative Agent is authorized to act as such). The
failure of any Lender to pedorm any of its obligations hereunder shall not relieve any other
Lender from any of its obligations hereunder. This Agreement shall not be construed so as to
confer any right or benefit upon any Person other than the paries to this Agreement and any
Person indemnfied under Section 9.6 or any other provision of this Agreement, and their
respective successors and assigns, provided that the paries hereto expressly agree that the
Aranger shall enjoy the benefits of the provisions of Sections 9.6, 9.10 and 10.11 to the extent
specifically set fort therein and shall have the right to enforce such provisions on its own behalf
and in its own name to the same extent as if it were a pary to this Agreement.
9.6. Expenses; Indemnfication.
(a) The Borrower shall reimburse the Administrative Agent and the Arranger
for any reasonable costs,'internal charges and out-of-pocket expenses (including reasonable
attorneys' fees and time charges of attorneys for the Administrative Agent, which attorneys may
be employees of the Administrative Agent) paid or incured by the Administrative Agent or the
Aranger in connection with the preparation, negotiation, execution, delivery, syndication,
distrbution (including via the internet), review, amendment, modification, and administration of
the Loan Documents. The Borrower also agrees to reimburse the Adminstrative Agent, the
Aranger and the Lenders for any reasonable costs, internal charges and out-of-pocket expenses
(including reasonable attorneys' fees and time charges of attorneys for the Administrative Agent,
the Aranger and the Lenders, which attorneys may be employees of the Administrative Agent,
the Aranger or a Lender) paid or incured by the Administrative Agent, the Aranger or any
Lender in connection with the collection and enforcement of the Loan Documents. Expenses
being reimbursed by the Borrower under this Section include reasonable costs and expenses
incured in connection with the Reports described in the following sentence. The Borrower
acknowledges that from time to time JPMorgan may prepare and may distrbute to the Lenders
(but shall have no obligation or duty to prepare or to distrbute to the Lenders) certain audit
reports (the "Reports") pertining to the Borrower's assets for internal use by JPMorgan from
information fuished to it by or on behalf of the Borrower, after JPMorgan has exercised its
rights of inspection pursuant to this Agreement.
37
(b) The Borrower hereby fuher agrees to indemnify the Administrative
( Agent, the Aranger, each Lender, their respective Affliates, and each of their parners,directors, officers, employees, agents and advisors (each such Person being called an
"Indemnitee") against all losses, claims, damages, penalties, judgments, liabilities and expenses
(including all expenses of litigation or preparation therefor whether or not such Indemnitee is a
par thereto) which any of them may payor incur arsing out of or relating to this Agreement,
the other Loan Documents, the transactions contemplated hereby or the direct or indirect
application or proposed application of the proceeds of any Loans hereunder except to the extent
that they are determined in a final non-appealable judgment by a cour of competent jurisdiction
to have resulted from the gross negligence or willful misconduct of the par seeking
indemnfication.
(c) The obligations of the Borrower under this Section 9.6 shall surive the
termination of this Agreement.
9.7. Numbers of Documents. All statements, notices, closing documents, and requests
hereunder shall be fushed to the Administrative Agent with suffcient counterpars so that the
Administrative Agent may furnsh one to each of the Lenders.
9.8. Accounting. Except as provided to the contrar herein, all accounting terms used
herein shall be interpreted and all accounting determinations hereunder shall be made in
accordance with Agreement Accounting Principles.
(
9.9. Severabilty of Provisions. Any provision in any Loan Document that is held to
be inoperative, unenforceable, or invalid in any jursdiction shall, as to that jursdiction, be
inoperative, unenforceable, or invalid without afecting the remaining provisions in that
jursdiction or the operation, enforceabilty, or validity of that provision in any other jurisdiction,
and to this end the provisions of all Loan Documents are declared to be severable.
9.10. Nonliability of Lenders. The relationship between the Borrower on the one hand
and the Lenders and the Administrative Agent on the other hand shall be solely that of borrower
and lender. None of the Administrative Agent, the Aranger or any Lender shall have any
fiduciar responsibilties to the Borrower. None of the Administrative Agent, the Aranger or
any Lender undertes any responsibilty to the Borrower to review or inform the Borrower of
any matter in connection with any phase of the Borrower's business or operations. The
Borrower agrees that no Indemntee shall have liabilty to the Borrower (whether sounding in
tort, contract or otherwse) for losses suffered by the Borrower in connection with, arsing out of,
or in any way related to, the transactions contemplated and the relationship established by the
Loan Documents, or any act, omission or event occurng in connection therewith, unless it is
determined in a final non-appealable judgment by a cour of competent jursdiction that such
losses resulted from the gross negligence or wilful misconduct of the pary from which recovery
is sought. No Indemnitee shall have any liabilty with respect to, and the Borrower hereby
waives, releases and agrees not to sue for, (i) any special, indirect, consequential or punitive
damages suffered by the Borrower in connection with, arsing out of, or in any way related to the
Loan Documents or the transactions contemplated thereby, and (ii) any damages arsing from the
use by unintended recipients of any information or other materials distrbuted by it though
telecommunications, electronic or other information transmission systems in connection with this
38
Agreement or the other Loan Documents or the transactions contemplated herèby or thereby.
The provisions of this Section 9.10 shall surive the termination of this Agreement.
9.1 1. Confidentiality. Each Lender agrees to hold any confdential information which it
may receive from the Borrower pursuat to ths Agreement in confidence, except for disclosure
(i) to its Affliates, directors, officers, employees and agents and to other Lenders and their
respective Affliates, directors, offcers, employees and agents (ii) to legal counsel, accountants,
and other professional advisors to such Lender or to a Transferee, (iii) to regulatory offcials
having jursdiction over such Lender or any of its Affliates, (iv) as required by law, regulation,
or legal process, (v) as required in connection with any legal proceeding to which such Lender is
a pary, (vi) to such Lender's actual or prospective direct or indirect contractual counterparies in
Rate Management Transactions or to legal counsel, accountants and other professional advisors
to such counterparies, (vii) permitted by Section 12.4, (viii) in connection with the exercise of
rights or remedies hereunder or any action or proceeding relating to ths agreement and (ix) to
the extent, and in the maner, consented to by the Borrower. In the case of any disclosure
pursuant to clause (i), (ii), (vi) or (vii) above, each Person to whom such disclosure is made will
be informed of the confdential natue of such information and instrcted to keep such
information confdential. In the case of any requested disclosure pursuant to clause (iv) or (v)
above, the applicable Lender will give prompt notice of the request to the Borrower (unless
prohibited by the terms ofthe applicable law, regulation, subpoena or other legal process or
proceeding) so that the Borrower may endeavor to obtan a protective order or other assurance of
confidential treatment.
( 9.12. Nonreliance. Each Lender hereby represents that it is not relying on or looking to
" any margin stock (as defined in Regulation U of the Board of Governors of the Federal Reserve
System) for the repayment of the Loans provided for herein.
9.13. Disclosure. The Borrower and each Lender hereby acknowledge and agree that
JPMorgan and/or its Affiliates from time to time may hold investments in, make other loans to or
have other relationships with the Borrower and its Affliates.
9.14. PATRIOT Act Notice. Each Lender that is subject to the PATROT Act and the
Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the Borrower
that pursuant to the requirements of the PATROT Act, it is required to obtan, verify and record
inormation that identifies the Borrower, which information includes the name and address of the
Borrower and other information that will allow such Lender or the Administrative Agent, as
applicable, to identify the Borrower in accordance with the PATRIOT Act.
9.15. Counterpars. This Agreement may be executed in any number of counterpars,
alI of which taken together shall constitute one agreement, and any of the paries hereto may
execute ths Agreement by signng any such counterpar. Ths Agreement shall be effective
when it has been executed by the Borrower, the Administative Agent and the Lenders as of the
Closing Date and each par has notified the Administrative Agent by facsimile transmission or
telephone that it has taken such action; provided that, for the avoidance of doubt, the
Commitments shall not become effective until all of the conditions set forth in Section 4.1 have
been satisfied or waived in. accordance with the terms hereof.
39
ARTICLE 10
THE ADMINISTRATIVE AGENT
10.1. Appointment; Natue of Relationship. JPMorgan is hereby appointed by each of
the Lenders as its contractual representative (herein referred to as the "Administrative Agent")
hereunder and under each other Loan Document, and each of the Lenders irrevocably authorizes
the Administrative Agent to act as the contractual representative of such Lender with the rights
and duties expressly set fort herein and in the other Loan Documents. The Administrative
Agent agrees to act as such contractual representative upon the express conditions contained in
this Article 10. Notwthstanding the use of the defined term "Administrative Agent," it is
expressly understood and agreed that the Administrative Agent shall not have any fiduciary
responsibilties to any Lender by reason of this Agreement or any other Loan Document and that
the Adminstrtive Agent is merely acting as the contractual representative of the Lenders with
only those duties as are expressly set fort in ths Agreement and the other Loan Documents. In
its capacity as the Lenders' contractual representative, the Administrative Agent (i) does not
hereby assume any fiduciar duties to any of the Lenders, (ii) is a "representative" of the Lenders
within the meaning of Section 9-105 of the Uniform Commercial Code and (iii) is acting as an
independent contractor, the rights and duties of which are limited to those expressly set forth in
this Agreement and the other Loan Documents. Each of the Lenders hereby agrees to assert no
claim against the Administrative Agent on any agency theory or any other theory of liabilty for
breach of fiduciar duty, all of which claims each Lender hereby waives.
(10.2. Powers. The Administrative Agent shall have and may exercise such powers
under the Loan Documents as are specifically delegated to the Administrative Agent by the terms
of each thereof, together with such powers as are reasonably incidental thereto. The
Administrative Agent shall have no implied duties to the Lenders, or any obligation to the
Lenders to take any action thereunder except any action specifically provided by the Loan
Documents to be taken by the Administrative Agent.
10.3. General Immunity. Neither the Administrative Agent nor any of its directors,
offcers, agents or employees shall be liable to the Borrower, the Lenders or any Lender for any
action taken or omitted to be taen by it or them hereunder or under any other Loan Document or
in connection herewith or therewith except to the extent such action or inaction is determined in
a final non-appealable judgment by a cour of competent jursdiction to have arsen from the
gross negligence or willful misconduct of such Person.
1004. No Responsibilty for Loans, Recitas, etc. Neither the Administrative Agent nor
any of its directors, officers~ agents or employees shall be responsible for or have any duty to
ascertain, inquire into, or verify (a) any statement, waranty or representation made in connection
with any Loan Document or any borrowing hereunder or the contents of any certificate, report or
other document delivered hereunder or in connection with any Loan Document; (b) the
performance or observance of any of the covenants or agreements of any obligor under any Loan
Document, including any agreement by an obligor to fush information directly to each Lender;
(c) the satisfaction of any condition specified in Article 4, except receipt of items required to be
delivered solely to the Administrtive Agent; (d) the existence or possible existence of any
Default or Unmatued Default; (e) the validity, enforceabilty, effectiveness, sufficiency or
40
(
genuineness of any Loan Document or any other instruent or wrting fuished in connection
therewith; (f) the value, suffciency, creation, pedection or priority of any Lien in any collateral
security; or (g) the financial condition of the Borrower or any guarantor of any of the Obligations
or of any of the Borrower's or any such guarantor's respective Subsidiaries. The Administrative
Agent shall have no duty to disclose to the Lenders inormation that is not required to be
fushed by the Borrower to the Administrative Agent at such time, but is voluntarly fuished
by the Borrower to the Administrative Agent (either in its capacity as Administrative Agent or in
its individual capacity).
10.5. Action on Instrctions of Lenders. The-Administrative Agent shall in all cases be
fully protected in acting, or in refraining from acting, hereunder and under any other Loan
Document in accordance with wrtten instrctions signed by the Required Lenders (or all of the
Lenders in the event that and to the extent that this Agreement expressly requires such), and such
instrctions and any action taen or failure to act pursuant thereto shall be binding on all of the
Lenders. The Lenders hereby acknowledge that the Administrative Agent shall be under no duty
to take any discretionar action permitted to be taken by it pursuant to the provisions of this
Agreement or any other Loan Document unless it shall be requested in wrting to do so by the
Required Lenders (or all of the Lenders in the event that and to the extent that this Agreement
expressly requires such). The Administrative Agent shall be fully justified in failng or refusing
to take any action hereunder and under any other Loan Document unless it shall first be
indemnified to its satisfaction by the Lenders pro rata agaist any and all liabilty, cost and
expense that it may incur by reason of takng or continuing to take any such action.
( 10.6. Employment of Adminstrative Agents and Counsel. The Administrative Agent" may execute any of its duties as Administrative Agent hereunder and under any other Loan
Document by or though directors, offcers, employees, agents, and attorneys-in-fact and shall
not be answerable to the Lenders (except as to money or securties received by it or its
authorized agents) for the default or misconduct of any such agents or attorneys-in-fact selected
by it with reasonable care. The Administrative Agent shall be entitled to advice of counsel
concerning the contractual arangement between the Administrative Agent and the Lenders and
all matters pertaining to the Administrative Agent's duties hereunder and under any other Loan
Document.
10.7. Reliance on Documents; Counsel. The Administrative Agent shall be entitled to
rely upon any note, notice, consent, certficate, afdavit, letter, telegram, statement, paper or
document believed by it to be genuine and correct and to have been signed or sent by the proper
person or persons, and, in respect to legal matters, upon the opinion of counsel selected by the
Administrative Agent, which counsel may be employees of the Administrative Agent. Without
limiting the foregoing, the Administrative Agent may consult with legal counsel (who may be
counsel for the Borrower), independent accountats and other experts selected by it, and shall not
be liable for any action taen or not taken by it in accordance with the advice of any such
counsel, accountants or experts.
10.8. Administrative Agent's Reimbursement and Indemnfication. The Lenders agree
to reimburse and indemnify the Administrative Agent ratably in proportion to their respective
Pro Rata Shares (i) for any amounts not reimbursed by the Borrower for which the
Administrative Agent is entitled to reimbursement by the Borrower under the Loan Documents,
41
(ii) for any other expenses incured by the Administrative Agent on behalf of the Lenders, in
connection with the preparation, execution, delivery, administration and enforcement of the LoanDocuments (including for any expenses incured by the Administrative Agent in connection with
any dispute between the Administrative Agent and any Lender or between two or more of the
Lenders) and (iii) for any liabilties, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind and nature whatsoever which may be
imposed on, incured by or asserted against the Administrative Agent in any way relating to or
arsing out of the Loan Documents or any other document delivered in connection therewith or
the transactions contemplated thereby (including for any such amounts incured by or asserted
agaist the Administrative Agent in connection with any dispute between the Administrative
Agent and any Lender or between two or more of the Lenders), or the enforcement of any of the
terms of the Loan Documents or of any such other documents, provided that (x) no Lender shall
be liable for any of the foregoing to the extent any of the foregoing is found in a final' non-
appealable judgment by a cour. of competent jursdiction to have resulted from the gross
negligence or wilful misconduct of the Administrative Agent and (y) any indemnfication
required pursuant to Section 3.5(g) shall, notwthstanding the provisions of this Section 10.8, be
paid by the relevant Lender in accordance with the provisions thereof. The obligations of the
Lenders under this Section 10.8 shall surive payment of the Obligations and termination of this
Agreement.
10.9. Notice of Default. The Administrative Agent shall not be deemed to have
knowledge or notice of the occurence of any Default or Unmatued Default hereunder unless the
Administrative Agent has received wrtten notice from a Lender or the Borrower referrng to this
Agreement, describing such Default or Unmatued Default and stating that such notice is a
"notice of default". In the event that the Administrative Agent receives such a notice, the
Administrative Agent shall give prompt notice thereof to the Lenders.
10.10. Rights as a Lender. In the event the Administrative Agent is a Lender, the
Administrative Agent shall have the same rights and powers hereunder and under any other Loan
Document with respect to its Commitment and its Loans as any Lender and may exercise the
same as though it were not the Administrative Agent, and the term "Lender" or "Lenders" shall,
at any time when the Administrative Agent is a Lender, uness the context otherwse indicates,
include the Administrative Agent in its individual capacity. The Administrative Agent and its
Affliates may accept deposits from, lend money to, and generally engage in any kid of trst,
debt, equity or other transaction, in addition to those contemplated by ths Agreement or any
other Loan Document, with the Borrower or any of its Subsidiares in which the Borrower or
such Subsidiar is not restrcted hereby from engaging with any other Person. The
Administrative Agent, in its individual capacity, is not obligated to remain a Lender.
10.11. Lender Credit Decision. Each Lender acknowledges that it has, independently
and without reliance upon the Administrtive Agent, the Aranger or any other Lender and based
on the financial statements prepared by the Borrower and such other documents and information
as it has deemed appropriate, made its own credit analysis and decision to enter into ths
Agreement and the other Loan Documents. Each Lender also acknowledges that it will,
independently and without reliance upon the Administrtive Agent, the Aranger or any other
Lender and based on such documents and information as it shall deem appropriate at the time,
42
continue to make its own credit decisions in taking or not taking action under this Agreement and
the other Loan Documents.
(
10. I 2. Successor Administrative Agent. The Administrative Agent may resign at any
time by giving wrtten notice thereof to the Lenders and the Borrower, such resignation to be
effective upon the appointment of a successor Administrative Agent or, if no successor
Administrative Agent has been appointed, fort-five (45) days afer the retiring Administrative
Agent gives notice of its intention to resign. Upon any such resignation, the Required Lenders
shall have the right to appoint, on behalf of the Borrower and the Lenders, a successor
Administrative Agent. If no successor Administrative Agent shall have been so appointed by the
Required Lenders within thirty (30) days after the resigning Administrative Agent's giving
notice of its intention to resign, then the resigning Administrative Agent may appoint, on behalf
of the Borrower and the Lenders, a successor Administrative Agent. Notwithstanding the
previous sentence, the Administrative Agent may at any time without the consent of the
Borrower or any Lender, appoint any of its Affliates, which is a commercial ban as a successor
Administrative Agent hereunder. If the Administrative Agent has resigned and no successor
Administrative Agent has been appointed, the Lenders may perform all the duties of the
Adminstrative Agent hereunder and the Borrower shall make all payments in respect of the
Obligations to the applicable Lender and for all other puroses shall deal directly with the
Lenders. No successor Administrative Agent shall be deemed to be appointed hereunder until
such successor Administrative Agent has accepted the appointment. Any such successor
Administrative Agent shall be a commercial ban having capital and retained earings of at least
$100,000,000. Upon the acceptance of any appointment as Administrative Agent hereunder by a
successor Administrative Agent, such successor Administrative Agent shall thereupon succeed to
and become vested with all the rights, powers, privileges and duties of the resignng
Administrative Agent. Upon the effectiveness of the resignation of the Administrative Agent,
the resigning Administrative Agent shall be discharged from its duties and obligations hereunder
and under the Loan Documents. After the effectiveness of the resignation of an Administrative
Agent, the provisions of this Artcle 10 shall continue in effect for the benefit of such
Administrative Agent in respect of any actions taen or omitted to be taen by it while it was
acting as the Administrative Agent hereunder and under the other Loan Documents. In the event
that there is a successor to the Administrative Agent by merger, or the Administrative Agent
assigns its duties and obligations to an Affliate puruant to ths Section 10.12, then the term
"Prime Rate" as used in ths Agreement shall mean the prime rate, base rate or other analogous
rate of the new Administrative Agent.
10.13. Administrative Agent and Aranger Fees. The Borrower agrees to pay to the
Administrative Agent and the Aranger, for their accounts, the fees agreed to by the Borrower,
the Administrative Agent and/or the Aranger pursuant to the Fee Letter.
10.14. Delegation to Affliates. The Borrower and the Lenders agree that the
Administrative Agent may delegate any of its duties under ths Agreement to any of its
Affiliates. Any such Affliate (and such Affiliate's directors, offcers, agents and employees)
which performs duties in connection with this Agreement shall be entitled to the same benefits of
the indemification, waiver and other protective provisions to which the Administrative Agent is
entitled under Article 9 and Artcle 10.
43
(
10. I 5. Other Agents. No Lender now or hereafter identified on the cover page, the
signatue pages or otherwse in this Agreement, or in any document related hereto, as being the
"Syndication Agent" or a "Documentation Agent" shall have any right, power, obligation,
liabilty, responsibilty or duty under this Agreement in such capacity other than those applicable
to all Lenders. Each Lender acknowledges that it has not relied, and wil not rely, on any Person
so identified in deciding to enter into this Agreement or in takng or refraining from taking any
action hereunder or pursuant hereto.
ARTICLE 11
SETOFF; RATABLE PAYMENTS
i 1. I. Setoff. In addition to, and without limitation of, any rights (including other rights
of setoff) of the Lenders under applicable law, if the Borrower becomes insolvent, however
evidenced, or any Default occurs, any and all deposits (including all account balances, whether
provisional or final and whether or not collected or available) and any other Indebtedness at any
time held or owing by any Lender or any of its respective Affliates to or for the credit or account
of the Borrower may be offset and applied toward the payment of the Obligations owing to such
Lender or any such Affiliate whether or not the Obligations, or any par thereof, shall then be
due. Each Lender agrees to notify the Borrower and the Administrative Agent in wrting
promptly after any such setoff and application; provided that the failure to give such notice shall
not affect the validity of such setoff and application.
11.2. Ratable Payments. If any Lender, whether by setoff or otherwse, has payment
made to it upon its Outstanding Credit Exposure (other than payments received pursuant to
Sections 3.1,3.2, 3.4 or 3.5) in a greater proportion than that received by any other Lender, such
Lender agrees, promptly upon demand, to purchase a portion of the Aggregate Outstanding
Credit Exposure held by the other Lenders so that after such purchase each Lender wil hold its
Pro Rata Share of the Aggregate Outstading Credit Exposure. If any Lender, whether in
connection with setoff or amounts which might be subject to setoff or otherwse, receives
collateral or other protection for its Obligations or such amounts which may be subject to setoff,
such Lender agrees, promptly upon demand, to take such action necessar such that all Lenders
share in the benefits of such collateral ratably in proporton to their respective Pro Rata Share of
the Aggregate Outstading Credit Exposure. In case any such payment is distubed by legal
process, or otherwse, appropriate fuer adjustents shall be made. If an amount to be setoff is
to be applied to Indebtedness of the Borrower to a Lender other than Indebtedness comprised of
the Outstanding Credit Exposure of such Lender, such amount shall be applied ratably to such
other Indebtedness and to the Indebtedness comprised of such Outstanding Credit Exposure.
ARTICLE 12
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
12.1. Successors and Assigns. The tenns and provisions of the Loan Documents shall
be binding upon and inure to the benefit of the Borrower and the Lenders and their respective
successors and assigns, except that (i) the Borrower shall not have the right to assign its rights or
( obligations under the Loan Documents without the wrtten consent of each Lender, (ii) any
44
assignent by any Lender must be made in compliance with Section 12.3 and (ii) any
paricipation by any Lender must be made in compliance with Section 12.2. The paries to this
Agreement acknowledge that clause (ii) of the foregoing sentence relates only to absolute
assignents and does not prohibit assignents creating securty interests, including (x) any
pledge or assignent by any Lender of all or any portion of its rights under ths Agreement and
any Note to a Federal Reserve Ban or (y) in the case of a Lender which is a fud, any pledge or
assignent of all or any portion of its rights under this Agreement and any Note to its trstee in
support of its obligations to its trstee; provided that no s~ch pledge or assignment creating a
securty interest shall release the transferor Lender from its obligations hereunder unless and
until the pares thereto have complied with the provisions of Section 12.3. The Administrative
Agent may treat the Person which made any Loan or which holds any Note as the owner thereof
for all puroses hereof unless and until such Person complies with Section 12.3; provided that
the Administrative Agent may in its discretion (but shall not be required to) follow instrctions
from the Person which made any Loan or which holds any Note to direct payments relating to
such Loan or Note to another Person. Any assignee of the rights to any Loan or any Note agrees
by acceptance of such assignment to be bound by all the terms and provisions of the Loan
Documents. Any request, authority or consent of any Person, who at the time of making such
request or giving such authority or consent is the owner of the rights to any Loan (whether or not
a Note has been issued in evidence thereof), shall be conclusive and binding on any subsequent
holder or assignee of the rights to such Loan.
12.2. Paricipations.
(a) Permitted Parcipants; Effect. Any Lender may, in the ordinar course of
its business and in accordance with applicable law, at any time sell to one or more bans or other
entities ("Paricipants") participating interests in any Outstanding Credit Exposure of such
Lender, any Note held by such Lender, any Commitment of such Lender or any other interest of
such Lender under the Loan Documents. In the event of any such sale by a Lender of
paricipating interests to a Paricipant, such Lender's obligations under the Loan Documents
shall remain unchanged, such Lender shall remain solely responsible to the other paries hereto
for the performance of such obligations, such Lender shall remain the owner of its Outstanding
Credit Exposure and the holder of any Note issued to it in evidence thereof for all puroses under
the Loan Documents, all amounts payable by the Borrower under ths Agreement shall be
determined as if such Lender had not sold such parcipating interests, and the Borrower and the
Administrative Agent shall continue to deal solely and directly with such Lender in connection
with such Lender's rights and obligations under the Loan Documents.
(b) Voting Rights. Each Lender shall retain the sole right to approve, without
the consent of any Participant, any amendment, modification or waiver of any provision of the
Loan Documents other than any amendment, modification or waiver with respect to any Loans
or Commitment in which such Paricipant has an interest which forgives principal, interest or
fees or reduces the interest rate or fees payable with respect to any such Loan or Commitment,
extends the Facilty Termination Date, postpones any date fixed for any regularly-scheduled
payment of principal of, or interest or fees on, any such Loan or Commitment, releases any
guarantor of any such Loan or releases all or substantially all of the collateral, if any, securng
any such Loan.
45
\
(c) Benefit of Setoff. The Borrower agrees that each Paricipant shall be
deemed to have the right of setoff provided in Section 11.1 in respect of its paricipating interest
in amounts owing under the Loan Documents to the same extent as if the amount of its
paricipating interest were owing directly to it as a Lender under the Loan Documents, provided
that each Lender shall retain the right of setoff provided in Section 11.1 with respect to the
amount of paricipating interests sold to each Paricipant. The Lenders agree to share with each
Paricipant, and each Paricipant, by exercising the right of setoff provided in Section 11.1,
agrees to share with each Lender, any amount received pursuant to the exercise of its right of
setoff, such amounts to be shared in accordance with Section 11.2 as if each Paricipant were a
Lender.
12.3. Assignents.
(
(a) Permtted Assignents. Any Lender may, in the ordinar course of its
business and in accordance with applicable law, at any time assign to one or more bans or other
entities ("Purchasers") all or any par of its rights and obligations under the Loan Documents.
Such assignent shall be substantially in the form of Exhibit C or in such other form as may be
agreed to by the paries thereto. The consent of the Borrower and the Administrative Agent shall
be required prior to an assignment becoming effective with respect to a Purchaser which is not a
Lender or an Mfiliate thereof or anApproved Fund; provided that if a Default has occured and
is continuing, the consent of the Borrower shall not be required. Such consent shall not be
uneasonably witheld or delayed. Each such assignment with respect to a Purchaser which is
not a Lender or an Affliate thereof or an Approved Fund shall (unless each of the Borrower (so
long as no Default has occured and is continuing) and the Administrative Agent otherwise
consents) be in an amount not less than the lesser of (i) $ 1 0,000,000 or (ii) the remaining amount
of the assigning Lender's Commitment (calculated as at the date of such assignent) or
Outstanding Credit Exposure (if the applicable Commitment has been terminated).
(b) Effect; Effective Date. Upon (i) delivery to the Administrative Agent of
an assignment, together with any consents required by Section 12.3(a), and (ii) payment of a
$3,500 fee to the Administrative Agent for processing such assignent (unless such fee is
waived by the Admnistrative Agent in its sole discretion), such assignent shall become
effective on the effective date specified in such assignment. The assignent shall contain a
representation by the Purchaser to the effect tht none of the consideration used to make the
purchase of the Commitment and Outstdig Credit Exposure under the applicable assignent
agreement constitutes "plan assets" as defined under ERISA and that the rights and interests of
the Purchaser in and under the Loan Documents will not be "plan assets" under ERISA. On and
afer the effective date of such assignent, such Purchaser shall for all puroses be a Lender
'pary to this Agreement and any other Loan Document executed by or on behalf of the Lenders
and shall have all the rights and obligations of a Lender under the Loan Documents, to the same
extent as if it were an original par hereto, and no fuer consent or action by the Borrower, the
Lenders or the Administrative Agent shall be required to release the transferor Lender with
respect to the percentage of the Aggregate Commitment and Outstanding Credit Exposure
assigned to such Purchaser; provided, however, that for the avoidance of doubt, the transferor
Lender shall continue to be entitled to the benefits of those provisions of this Agreement and the
other Loan Documents which surve payment of the Obligations and termination of the Loan
Documents. Upon the consumation of any assignent to a Purchaser pursuat to this
46
Section 12.3(a), the transferor Lender, the Administrative Agent and the Borrower shall, if the
transferor Lender or the Purchaser desires that its Loans be evidenced by Notes, make
appropriate arangements so that new Notes or, as appropriate, replacement Notes are issued to
such transferor Lender and new Notes or, as appropriate, replacement Notes, are issued to such
Purchaser, in each case in principal amounts reflecting their respective Commitments (or, if the
Commitments have terminated, their respective Outstanding Credit Exposure), as adjusted
pursuant to such assignment.
(c) Register. The Administrative Agent, acting solely for this purose as an
agent of the Borrower, shall maintain at its offce in referred to in Schedule 13.1 a copy of each
assignment agreement delivered to it and a register for the recordation of the names and
addresses of the Lenders, and the Commitments of, and Outstading Credit Exposure owing to,
each Lender pursuant to the terms hereof from time to time (the "Register"). The entries in the
Register shall be conclusive, and the Borrower, the Administrative Agent and the Lenders may
treat each Person whose name is recorded in the Register pursuant to the terms hereof as a
Lender hereunder for all puroses of ths Agreement, notwthstading notice to the contrar. The
Register shall be available for inspection by the Borrower and any Lender at any reasonable time
and from time to time upon reasonable prior notice.
(\
12.4. Dissemination of Information. The Borrower authorizes each Lender to disclose
to any Paricipant or Purchaser or any other Person acquiring an interest in the Loan Documents
by operation of law (each a "Transferee") and any prospective Transferee any and all
information in such Lender's possession concerning the creditwortness of the Borrower and its
Subsidiares, including any information contained in any Reports; provided that each Transferee
and prospective Transferee agrees to be bound by Section 9.11 of this Agreement.
12.5. Tax Treatment. Ifany interest in any Loan Document is transferred to any
Transferee, which is organized under the laws of any jursdiction other than the United States or
any State thereof, the transferor Lender shall cause such Transferee, concurently with the
effectiveness of such transfer, to comply with the provisions of Section 3.S( d) and such
Transferee shall not be entitled to any additional payments under Section 3.S, (i) uness, and only
to the extent, that the transferor Lender was entitled to amounts under Section 3.5, or (ii) in the
event that payments to the Transferee were not subject to any witholding at the time of transfer
and became subject to withholding as a result of a Change In Law.
ARTICLE 13
NOTICES
13.1. Notices.
(a) Except as otherwse permitted by Section 2.13 with respect to borrowing
notices, all notices, requests and other communcations to any par hereunder shal be in wrting
(including electronic transmission, facsimile tranmission or similar wrting) and shall be given
to such pary: (x) in the case of the Borrwer or the Administrative Agent, at its address or
facsimile number set forth on Schedule 13.1, (y) in the case of any Lender, at its address or
facsimile number set forth in its Administrative Questionnaire or (z) in the case of any pary, at
47
I'
~,
such other address or facsimile number as such par may hereafter specify for the purose by
notice to the Administrative Agent and the Borrower in accordance with the provisions of this
Section 13.1. Each such notice, request or other communication shall be effective (i) if given by
facsimile transmission, when transmitted to the facsimile number specified in ths Section and
confrmation of receipt is received, (ii) if given by mail, 72 hours afer such communication is
deposited in the mails with first class postage prepaid, addressed as aforesaid, or (ii) if given by
any other means, when delivered at the address specified in ths Section; provided that notices to
the Administrative Agent under Article 2 shall not be effective until received. Notices delivered
though electronic communications to the extent provided in subsection (b) below, shall be
effective as provided in such subsection (b).
(b) Notices and other communcations to the Lenders hereunder may be
delivered or fuished by electronic communcation (including e-mail and internet or intranet
web sites) pursuant to procedures approved by the Administrative Agent or as otherwse
determined by the Administrative Agent, provided that the foregoing shall not apply to notices to
any Lender pursuant to Article 2 if such Lender has notified the Administrative Agent that it is
incapable of receiving notices under such Section by electronic communication. The
Administrative Agent or the Borrower may, in its respective discretion, agree to accept notices
and other communications to it hereunder by electronic communications pursuant to procedures
approved by it or as it otherwse determines, provided that such determination or approval may
be limited to paricular notices or communications. Unless the Administrative Agent otherwise
prescribes, (i) notices and other communications sent to an e-mail address shall be deemed
received upon the sender's receipt of an acknowledgement from the intended recipient (such as
by the "retu receipt requested" fuction, as available, retu e-mail or other wrtten
acknowledgement), provided that if such notice or other communication is not given during the
normal business hours of the recipient, such notice or communication shall be deemed to have
been given at the opening of business on the next Business Day for the recipient, and (ii) notices
or communications posted to an internet or intranet website shall be deemed received upon the .
deemed receipt by the intended recipient at its e-mail address as described in the foregoing
clause (i) of notification that such notice or communication is available and identifyng the
website address therefor.
13.2. Change of Address. The Borrower, the Administrative Agent and any Lender
may each change the address for service of notice upon it by a notice in wrting to the other
paries hereto.
ARTICLE 14
CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JUy TRIAL
14.1. CHOICE OF LAW. THIS AGREEMENT AN THE OTHER LOAN
DOCUMENTS SHALL (EXCEPT AS MAYBE EXPRESSLY OTHERWISE PROVIDED IN
ANY LOAN DOCUMENT) BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK (INCLUDING SECTIONS 5-1401 AND
5- 1402 OF THE NEW YORK GENERAL OBLIGA nONS LAW, BUT EXCLUDING ALL
OTHER CHOICE OF LAW AND CONFLICTS OF LAW RULES).
(
48
14.2. CONSENT TO JURISDICTION. THE BORROWER HEREBY
IRRVOCABLY SUBMITS TO THE NONEXCLUSIVE JUSDICTION OF THE COURTS
OF THE STATE OF NEW YORK SITTG IN NEW YORK COUNTY AND OF THE
UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK,
AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENTS AND
THE BORROWER HEREBY IRRVOCABLY AGREES THAT ALL CLAIMS IN RESPECT
OF SUCH ACTION OR PROCEEDING MAYBE HEARD AND DETERMINED IN ANY
SUCH COURT AND IRRVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR
HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN
INCONVENIENT FORUM. NOTHING HEREIN SHAL LIMIT THE RIGHT OF THE
ADMIISTRATIVE AGENT OR ANY LENDER TO BRIG PROCEEDINGS AGAINST
THE BORROWER IN THE COURTS OF ANY OTHR JURISDICTION. ANY JUDICIAL
PROCEEDING BY THE BORROWER AGAINST THE ADMIISTRATIVE AGENT OR
ANY LENDER OR ANY AFFILIATE OF THE ADMINISTRATIVE AGENT OR ANY
LENDER INVOLVING, DIRECTLY OR INIRECTLY, ANY MA TIER IN ANY WAY
ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT
SHALL BE BROUGHT ONLY IN A COURT IN NEW YORK, NEW YORK.
14.3. WAIVER OF JURY TRIAL. THE BORROWER, TH ADMINISTRATIVE
AGENT AND EACH LENDER HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL
PROCEEDING INOLVING, DIRCTLY OR INDIRECTL Y, ANY MA TIR (WHETHER
SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARSING OUT OF,
RELATED TO, OR CONNCTED WITH ANY LOAN DOCUMENT OR THE
RELATIONSHIP ESTABLISHED THEREUNDER.
lSIGNA TURES FOLLOW 1
(
49
(
IN WITNES WHREOF, the Borrower, the Lenders and the Administrative Agent have
executed this Agreement as of the date first above written.
IDAHO POWER COMPANY, as the BorrowerBy: ~7:~
Name: Darel T. Anderson
Title: Sr. Vice President - Administrative Services
and Chief Financial Officer
"-
Idaho Power Company Term Loan Credit Agreement
(
JPMORGAN CHASE BANK, N.A., as
Administrative Agent and as a Lender
By:.
Name:
Title:
'~.
.L~2-R~Jennifer E. Fitzgerald
Associate
Idao Power Company Term Loan Credit Agreement
BANK OF AMERICA, N.A., as a Lender
By: ~l_~
Name: tes J. i;ichman
Title: ice President
~
Idao Power Company Term Loan Credit Agreement
WACHOVIA BANK, NATIONAL
ASSO~I~IION, as a LendcrBy: ~
Name:
Title:
HENRY R. BIEDRZYCKl
DIRECTOR
Idaho Power Company Term Loan Credit Agreement
""
UNION BANKO
Lender
By:
Name: Jesus Serr
Title: Vice Preside t
Idaho Power Company Term Loan Credit Agreement
SCHEDULE I
COMMITMENTS
JPMorgan Chase Ban, N.A.
Ban of America, N.A.
Union Ban of California, N.A.
Wachovia Ban, National Association
$ 42,500,000
$ 42,500,000
$ 42,500,000
$ 42,500,000
$170,000,000TOTAL
I-I
SCHEDULE S.8
SUBSIDIARES AND OTHER INVESTMENTS
(As of December 31, 2007)
Investment In Jurisdiction of Owned By
Organization
Idaho Energy Resources Co. Wyoming Idaho Power Company
(
'-
Schedule 5.8
Amount of
Investment
$55,937,107
Percent
Ownership
100%
SCHEDULE 5.12
MATERIAL AGREEMENTS
None.
Schedule 5.12
SCHEDULE 5.14
INDEBTEDNESS AND LIENS
Following is a list of existing liens of the Borrower and Subsidiaries:
Borrower:
Indebtedness Owed To: Bondholders pursuant to that certain Mortgage and Deed of Trust, dated
as of October i, 1937 between Borrower and Deutsche Ban Trust Company Americas (formerly
Baners Trust Company) and R.G. Page (Stanley Burg, successor individual trstee), as Trustee,
as supplemented and amended.
Property Encumbered: All existing and after-acquired real and personal propert of Borrower.
Amount of Indebtedness: The aggregate principal amount of Idaho Power Company First
Mortgage Bonds outstanding as of December 3 I, 2007 was $1. I 11 bilion. The amount of First
Mortgage Bonds issuable by Borrower, giving effect to the Forty-second Supplementa
Indentue, is limited to a maximum of $1.5 bilion, but subject to increase at any time and may
be fuer limited by propert, earngs and other provisions of the Mortgage.
(,
\
Schedule 5. 14
SCHEDULE 13.1
NOTICE ADDRESSES
Address for notices for Borrower:
Idaho Power Company
1221 West Idaho Street
P.O. Box 70
Boise, Idaho 83707
Attention: Steven R. Keen, Vice President and Treasurer
Telephone: [phone]
Fax: [phone]
Email: skeen§idahopower.com
Address for notices as Administrative Agent:
JPMorgan Chase Ban, N .A.
10 South Dearborn St., Floor 07
Chicago, Ilinois 60603
Attention: Walter Jones
Telephone: 312,.732-5078
Fax: [phone]
Email: walter.h.jones§chase.com
(
Address for notices for Credit Contact:
JPMorgan Chase Ban, N .A.
10 South Dearborn St., Floor 09
Chicago, Ilinois 60603
Attention: Jennifer Fitzgerald
Telephone: 312-732- I 754
Fax: [phone]
Email: jennfer.e.fitzgerald§jpmorgan.com
(
Schedule 13. i
EXlIT A
FORMS OF OPINIONS
Attached.
i\
CHI4183886v,5
DEWEY & LEBoEUF
Dewey & LeBoeuf LLP
125 West 55th Street
New York, NY 10019-5389
i
'.
tel [phone]
fax [phone]
April i, 2008
JPMorgan Chase Bank, N.A.,
as Administrative Agent and Lender
under the Term Loan Credit Agreement (as
defined below)
i 0 South Dearborn St., Floor 09
Chicago, Ilinois 60603
The Initial Lenders under the Term
Loan Credit Agreement
(
Ladies and Gentlemen:
We have acted as counsel to Idaho Power Company (the "Borrower") in connection with
the Term Loan Credit Agreement dated as of April i, 2008 among Borrower, the Lenders named
therein and JPMorgan Chase Bank, N.A., as Administrative Agent (the "Credit Agreement").
We are furnishing this opinion to you pursuant to Section 4.I(a)(v) ofthe Credit Agreement.
In that connection we have reviewed an execution copy of the Credit Agreement.
Capitalized terms used herein and not herein defined shall have the meanings assigned to them in
the Credit Agreement. In addition, we have examined originals or copies certified or otherwise
identified to our satisfaction, of such documents, corporate records, certificates of public officials
and other instruments, and have conducted such other investigations of fact and law, as we have
deemed necessar or advisable for purposes ofthis opinion.
In our examination, we have assumed the genuineness of all signatures, the authenticity
. of all documents submitted to us as originals, the conformity of the Credit Agreement as
executed to the execution copy that we reviewed and the conformity to authentic original
documents of all documents submitted to us as copies.
We have, with your permission but without having made any independent investigation
with respect thereto, relied as to all matters set fort therein on the legal opinion dated the date
hereof of Thomas R. Saldin, Senior Vice President and General Counsel of Borrower, addressed
NEWYORKILONDONMULTINATIONALPARTNERSHIPIWASHINGTON, DC
ALBANYIALMA TYIAUSTINI BEIJINGIBOSTONIBRUSSELSICHARLOTTEICHICAGOIDUBAI
EASTPALOAL TOIFRANKFURTIHARTFORDIHONGKoNGIHOUSTONIJACKSONVILLEIJOHANNESBURG (PTV)LTD.
Ei:Il~Gll~R idJBnit"PII~ile.sHIP i RIYADHAFFILIATEDoFFlcE l ROME I SAN FRANCISCO I WARSAW
(April I, 2008
Page 2
to you. We assumed the correctness of, and this opinion is subject to the qualifications contained
within, such opinion, including, without limitation, the qualifications relating to the scope and
effect of certin regulatory approvals.
Based upon and subject to the foregoing, and subject to the furter qualifications
hereinafter stated, we are of the opinion that:
I. The Credit Agreement constitutes the legal, valid and binding obligation of theBorrower, enforceable against the Borrower in accordance with its terms.
2. The execution, delivery and performance by the Borrower of the Credit
Agreement wil not violate any law or regulation of the State of New York.
3. Assuming the Borrower complies with the provisions ofthe Credit Agreement
relating to the use of proceeds and the percentage of its assets consisting of margin stock and
assuming that none of the Lenders is subject to Regulation T ofthe Board of Governors of the
Federal Reserve System, the execution and delivery of the Credit Agreement by the Borrower
and the making of Loans under the Credit Agreement wil not violate Regulation T, U or X of
the Board ofGovemors of the Federal Reserve System.
(
4. The Borrower is not required be registered as an "investment company" under the
Investment Company Act of 1940, as amended.
The foregoing opinions are subject to the following qualifications:
(a) Our opinions in paragraphs i and 2 are subject to applicable bankruptcy,
fraudulent transfer, fraudulent conveyance, insolvency, reorganization, moratorium, preferential
transfer and similar laws from time to time in effect affecting creditors' rights generally and to
general principles of equity (regardless of whether such principles are considered in a
proceeding in equity or at law).
(b) We have assumed, with your permission, that (I) the Credit Agreement
constitutes a valid and binding obligation of each par thereto other than the Borrower,
enforceable against each such par in accordance with its terms and (2) the assertions of fact, as
opposed to the legal conclusions, contained in the representations and waranties ofthe Borrower
in the Credit Agreement are accurate.
(c) We express no opinion as to whether a court, other than a New York court, would
apply the choice of law or choice of forum provisions of the Credit Agreement.
(d) We express no opinion as to the provisions in the Credit Agreement to the extent
such provisions relate to the subject matter jurisdiction of the United States District Courts.
\,
April 1, 2008
Page 3
(e) As to various provisions in the Credit Agreement that grant the Agent and/or the
Lenders certain rights to make determinations or take actions in its or their discretion, we assume
that such discretion wil be exercised in good faith and in a commercially reasonable manner.
(f) We express no opinion as to the enforceabilty of any provisions contained in the
Credit Agreement which (1) purport to restrict access to legal or equitable remedies or defenses;
(2) purport to waive or affect any right to notices, legal defenses, statutes of limitations or other
benefits that cannot be waived under applicable law; (3) purport to grant a right of offset; (4)
covenant to take actions, the taking of which is discretionar with or subject to the approval of a
third par or which is otherwise subject to a contingency, the fulfillment of which is not within
the control of the parties so covenanting; or (5) relate to subrogation rights, delay or omissions of
enforcement of remedies, election of remedies, waiver of defenses, indemnity or severabilty.
(g) We express no opinion as to the enforceabilty of any provisions relating to
prejudgment remedies or the waiver of a right to jury triaL.
(h) We express no opinion as to the applicabilty of, the compliance with or the effect
of failng to comply with (upon the enforceabilty of the Credit Agreement or otherwise) (1) any
United States federal, state or local antitrust, environmental or securities statutes, laws, rules or
regulations except to the limited extent provided in the opinion in paragraph 3 above or (2) anytax law.
(i) We note the possible unenforceabilty of certain remedial provisions contained in
the Credit Agreement; however, none of such provisions renders the Credit Agreement invalid as
a whole, and the Credit Agreement contains, in our judgment, adequate remedial provisions for
the practical realization of the rights and benefits afforded thereby, subject to the economic
consequences of procedural delay.
We express no opinion as to the laws of any jurisdictions other than the federal laws of
the United States and the laws of the State of New York.
This opinion is for the benefit solely of the addressees and their permitted successors and
assigns in connection with the transactions contemplated by the Credit Agreement and may not
be used or relied upon by any other person or entity or for any other purpose without our prior
written consent. This opinion speaks as of the date hereof and we undertke no responsibilty to
advise you of any change after the date hereof.
Very truly yours,
ii.IDAHO POWER COPANY
P,O.BOX70
BOISE, IDAHO 83707
An IDACORP Company
THOMAS R. SALDIN
Sr. Vice President and General Counsel
April 1,2008
JPMorgan Chase Bank, N.A.,
as Administrative Agent and Lender
under the Term Loan Credit Agreement (as
defined below)
i 0 South Dearborn St., Floor 09
Chicago, Ilinois 60603
The Initial Lenders under the Term
Loan Credit Agreement
Gentlemen/adies:
(
I am general counsel for Idaho Power Company, an Idaho corporation (the "Borrower"),
and have represented the Borrower in connection with its execution and delivery of a Term Loan
Credit Agreement dated as of April i, 2008 (the "Credit Agreement") among the Borrower, the
Lenders named therein and JPMorgan Chase Bank, N.A., as Administrative Agent. All
capitalized terms used in this opinion and not otherwise defined herein shall have the meanings
attributed to them in the Credit Agreement.
I have examined the Borrower's Restated Articles ofIncorporation, as amended, and By-
Laws, the Loan Documents and such other matters of fact and law which I deem necessary in
order to render this opinion. Based upon the foregoing, it is our opinion that:
i. Each of the Borrower and its Subsidiary is a corporation duly and properly
incorporated, validly existing and in good standing under the laws of its jurisdiction of
incorporation and has all requisite corporate authority to conduct its business in each jurisdiction
in which its business is conducted.
2. The execution and delivery by the Borrower of the Loan Documents and the
performance by the Borrower of its obligations thereunder have been duly authorized by proper
corporate proceedings on the par ofthe Borrower and wil not:
(a) require any consent of the Borrower's shareholders (other than any such consent
as has already been given and remains in full force and effect);
(b) (i) violate (x) any law, rule, regulation, order, writ, judgment, injunction, decree
or award binding on the Borrower or its Subsidiar or (y) the Borrower's or its Subsidiary's
articles or certificate of incorporation or bylaws or (ii) to the best of my knowledge, violate or
require termination of, or require the approval or consent of any Person under, the provisions of
any indenture, mortgage, deed of trst, instrment or agreement to which the Borrower or its
Telephone [phone], Fax [phone]
(April 1,2008
Page 2
Subsidiary is a part or is subject, or by which it, or its Propert, is bound, or conflct with or
constitute a default thereunder; or
(c) result in, or require, the creation or imposition of any Lien in, of or on the
Propert of the Borrower or a Subsidiary pursuant to the terms of any indenture, mortgage, deed
of trust or instrument or agreement binding upon the Borrower or its Subsidiary~
3. The Loan Documents have been duly executed and delivered by the Borrower.
4. Except as set forth in the financial statements referred to in Section 5.4 of theCredit Agreement, there is no litigation, arbitration, governmental investigation, proceeding or
inquiry pending or, to the best of my knowledge after due inquiry, threatened against the
Borrower or its Subsidiary which, if adversely determined, could reasonably be expected to have
a Material Adverse Effect. There is no litigation, arbitration, governmental investigation,
proceeding or inquiry pending or, to the best of my knowledge after due inquiry, threatened
against the Borrower or its Subsidiary which purports to affect the validity or enforceabilty of
the Loan Documents or seeks to enjoin the consummation ofthe transactions contemplated
thereby.
("5. No order, consent, adjudication, approval, license, authorization, or validation of,
or filing, recording or registration with, or exemption by, or other action in respect of any
governmental or public body or authority, or any subdivision thereof, which has not been
obtained by the Borrower or its Subsidiary, is required to be obtained by the Borrower or its
Subsidiary in connection with the execution and delivery of the Loan Documents, the borrowings
under the Credit Agreement, the payment and performance by the Borrower of the Obligations,
or the legality, validity, binding effect or enforceabilty of any ofthe Loan Documents or the
Obligations incurred thereunder; provided, however, that with respect to the payment and
performance by the Borrower on or after the Borrower's senior-secured bond ratings drops below
investment grade (BBB- or higher by Standard & Poor's Rating Service and Baa by Moody's
Investors' Service, Inc., a "Downgrade") and the legality, validity, binding effect or
enforceabilty of any of the Loan Documents or the Obligations incurred thereunder on or after a
Downgrade, this opinion is subject to the qualifications that (i) Order No. 30294 ("Idaho Order")
of the Idaho Public Utilties Commission ("Idaho PUC") issued April I 1, 2007 and Order No.
07-151 ofthe Public Utilty Commission of Oregon ("Oregon PUC") issued April 16,2007 each
provide that the authority of the Borrower under such order exists, unless renewed or extended,
only until the occurrence of a Downgrade; (ii) the Oregon statutes permit the issuance or renewal
of indebtedness maturing not more than one year after the date of such issue or renewal without
the approval ofthe Oregon PUC; and (ii) the Idaho Order provides that Borrower's authority
wil not terminate but wil continue for a period of 364 days from any Downgrade, during which
time Borrower is authorized to file a supplemental application with the Idaho PUC requesting
continuation of its original authority to borrow under the Idaho Order notwithstanding the
Downgrade. Notwithstanding the foregoing, any loss of regulatory authority in the States of
April 1,2008
Page 3
Idaho and Oregon resulting from a Downgrade would not affect the legality, validity, binding
effect or enforceabilty of any of the Loan Documents or the Obligations incurred thereunder
prior to the Downgrade.
With the exception of paragraph 5, the opinions expressed above are limited to the
corporate and other laws of the State of Idaho and the federal laws of the United States of
America. This opinion may be relied upon by the Administrative Agent, the Lenders and their
participants, assignees and other transferees in connection with the Credit Agreement, but it may
not be relied upon by any other person or for any other purpose without my prior written consent.
Very truly yours,
(
(--,
EXHBITB
FORM OF COMPLIACE CERTIFICATE
To: The Lenders Parties to the
Credit Agreement Described Below.
This Compliance Certificate is furnished pursuant to that certin Term Loan Credit
Agreement dated as of April i, 2008 (as amended or otherwise modified from time to time, the
"Credit Agreement") among Idaho Power Company (the "Borrower"), the lenders part thereto
and JPMorgan Chase Bank, N.A., as Administrative Agent. Unless otherwise defined herein,
capitalized terms used in this Compliance Certificate (and the attched schedule) have the
meanings ascribed thereto in the Credit Agreement.
THE UNERSIGNED HEREBY CERTIFIES THT:
1.I am the duly elected of the Borrower;
2. I have reviewed the terms of the Credit Agreement and I have made, or have
caused to be made under my supervision, a reasonable review of the transactions and conditions
of the Borrower and its Subsidiaries during the accounting period covered by the attched
financial statements;
(
3. The examinations described in paragraph 2 did not disclose, and I have no
knowledge of, the existence of any condition or event which constitutes a Default or Unmatured
Default during or at the end of the accounting period covered by the attached financial
statements or as ofthe date of this Compliance Certificate, except as set forth below; and
4. Schedule I attached hereto sets forth financial data and computations evidencing
the Borrower's compliance with Section 6.12 of the Credit Agreement, all of which data and
computations are tre, complete and correct.
Described below are the exceptions, if any, to paragraph 3 by listing, in detail, the nature
of the condition or event, the period during which it has existed and the action which the
Borrower has taken, is taking, or proposes to take with respect to each such condition or event:
(~
The foregoing certifications, together with the computations set forth in Scbedule I
hereto and the financial statements delivered with this Compliance Certificate in support hereof,
are made and delivered this day of
IDAHO PO~R COMPAN
By:
Name:
Title:
SCHEDULE I
TO COMPLIANCE CERTIFICATE
LEVERAGE RATIO
as of ,_
(Section 6.12 of the Credit Agreement)
(1) Consolidated Indebtednessl:
(t)
(g)
(h)
(i)
(a) Obligations for borrowed money $
(b) Obligations representing the deferred
purchase price of Propert or services
(other than accounts payable arising in the
ordinary course of such Person's business
payable on terms customary in the trade) $
(c) Obligations, whether or not assumed,
secured by Liens or payable out of the
proceeds or production from Propert now
or hereafter owned or acquired by suchPerson $
(d)Obligations which are evidenced by notes,
acceptances, or other instrments $
(e)Obligations of such Person to purchase
securities or other Propert arising out of
or in connection with the sale of the same
or substantially similar securities or
Propert $
$
$
$
$
Capitalized Lease Obligations
Contingent Obligations
Obligations in respect of Letters of Credit
Rate Management Obligations
i The aggregate outstading Indebtedness evidenced by Hybrid Securities shall be excluded to the extent that the
total book value of such Hybrid Securities does not exceed 15% of Consolidated Total Capitalization as of such
time.
G)Preferred stock which is required by the
terms thereof to be redeemed, or for which
mandatory sinking fund payments are due,
by a fixed date $
(k)Off-Balance Sheet Liabilities $
(1)Any other obligation for borrowed money
or other financial accommodation which in
accordance with Agreement Accounting
Principles would be shown as a liabilty on
the consolidated balance sheet of such
Person $
(m)Amounts outstanding under a Permitted
Receivables Securitization $
(n)Total Consolidated Indebtedness
Add Lines I(a) through I(m)$
(2)Consolidated Total Capitalization:
(a)Consolidated Indebtedness (from Line
(
I(n) above)$
(b)Consolidated Net Worth $
(c)Aggregate outstanding amount of Hybrid
Securities $
(d)Total Capitalization
Add Lines 2(a) through 2(c)$
(3)Leverage Ratio:
Divide Line 1 (n) by Line 2(d)
(4)Maximum Leverage Ratio permitted by Section
6.12 of the Credit Agreement 0.65: 1.0
EXHBITC
FORM OF ASSIGNMENT AGREEMENT
This Assignment Agreement (this "Assignment Agreement") between
(the "Assignor") and (the "Assignee") is dated as
of , _' The parties hereto agree as follows:
I. PRELIMINARY STATEMENT. The Assignor is a par to a Term Loan Credit
Agreement (as amended or otherwise modified from time to time, the "Credit Agreement")
described in Item I of Schedule 1 attched hereto. Capitalized terms used herein and not
otherwise defined herein shall have the meanings attibuted to them in the Credit Agreement.
2. ASSIGNMENT AND ASSUMPTION. The Assignor hereby sells and assigns to
the Assignee, and the Assignee hereby purchases and assumes from the Assignor, an interest in
and to the Assignor's rights and obligations under the Credit Agreement and the other Loan
Documents, such that after giving effect to such assignment the Assignee shall have purchased
pursuant to this Assignment Agreement the aggregate Commitment (or Outstanding Credit
Exposure, if the applicable Commitment has been terminated) specified in Item 3 of Schedule 1.
(
3. EFFECTIVE DATE. The effective date ofthis Assignment Agreement (the
"Effective Date") shall be the later of the date specified in Item 4 of Schedule 1 or two Business
Days (or such shorter period agreed to by the Administrative Agent) after this Assignment
Agreement, together with any consents required under the Credit Agreement, are delivered to the
Administrative Agent. In no event wil the Effective Date occur ifthe payments required to be
made by the Assignee to the Assignor on the Effective Date are not made on the proposed
Effective Date.
4. PAYMNT OBLIGATIONS. In consideration for the sale and assignment of
Outstanding Credit Exposure hereunder, the Assignee shall pay the Assignor, on the Effective
Date, the amount agreed to by the Assignor and the Assignee. On and after the Effective Date,
the Assignee shall be entitled to receive from the Administrative Agent all payments of principal,
interest and fees with respect to the interest assigned hereby. The Assignee wil promptly remit
to the Assignor any interest on Outstanding Credit Exposure and fees received from the
Administrative Agent which relate to the portion of the Commitment or Outstnding Credit
Exposure assigned to the Assignee hereunder for periods prior to the Effective Date and not
previously paid by the Assignee to the Assignor. In the event that either par hereto receives
any payment to which the other par hereto is entitled under this Assignment Agreement, then
the part receiving such amount shall promptly remit it to the other part hereto.
5. RECORDATION FEE. The Assignor and Assignee each agree to pay one-half of
the recordation fee required to be paid to the Administrative Agent in connection with this
Assignent Agreement unless otherwise specified in Item 5 of Schedule 1.
6. REPRESENTATIONS OF THE ASSIGNOR: LIMITATIONS ON THE
ASSIGNOR'S LIABILITY. The Assignor represents and warrants that (i) it is the legal and
beneficial owner of the interest being assigned by it hereunder, (ii) such interest is free and clear
\
of any adverse claim created by the Assignor and (iii) the execution and delivery of this
Assignent Agreement by the Assignor is duly authorized. It is understood and agreed that the
assignment and assumption hereunder are made without recourse to the Assignor and that the
Assignor makes no other representation or warranty of any kind to the Assignee. Neither the
Assignor nor any of its offcers, directors, employees, agents or attorneys shall be responsible for
(i) the due execution, legality, validity, enforceability, genuineness, sufficiency or collectabilty
of any Loan Document, including documents granting the Assignor and the other Lenders a
security interest in assets ofthe Borrower or any guarantor, (ii) any representation, warranty or
statement made in or in connection with any oftheLoan Documents, (ii) the financial condition
or creditworthiness of the Borrower or any guarantor, (iv) the performance of or compliance with
any of the terms or provisions of any of the Loan Documents, (v) inspecting any ofthe propert,
books or records of the Borrower, (vi) the validity, enforceabilty, perfection, priority, condition,
value or suffciency of any collateral securing or purporting to secure the Loans or (vii) any
mistake, error of judgment, or action taken or omitted to be taken in connection with the Loans
or the Loan Documents.
(
7. REPRESENTATIONS AND UNERTAKINGS OF THE ASSIGNEE. The
Assignee.(i) confirms that it has received a copy of the Credit Agreement, together with copies
of the financial statements requested by the Assignee and such other documents and information
as it has deemed appropriate to make its own credit analysis and decision to enter into this
Assignment Agreement, (ii) agrees that it wil, independently and without reliance upon the
Administrative Agent, the Assignor or any other Lender and based on such documents and
information at it shall deem appropriate at the time, continue to make its own credit decisions in
taing or not taking action under the Loan Documents, (iii) appoints and authorizes the
Administrative Agent to tae such action as agent on its behalf and to exercise such powers
under the Loan Documents as are delegated to the Administrative Agent by the terms thereof,
together with such powers as are reasonably incidental thereto, (iv) confirms that the execution
and delivery of this Assignment Agreement by the Assignee is duly authorized, (v) agrees that it
wil perform in accordance with their terms all of the obligations which by the terms ofthe Loan
Documents are required to be performed by it as a Lender, (vi) agrees that its payment
instructions and notice instructions are as set fort in the attachment to Schedule 1, (vii)
confirms that none of the funds, monies, assets or other consideration being used to make the
purchase and assumption hereunder are "plan assets" as defined under ERISA and that its rights,
benefits and interests in and under the Loan Documents wil not be "plan assets" under ERlSA,
(vii) agrees to indemnitY and hold the Assignor harless against all losses, costs and expenses
(including reasonable attorneys' fees) and liabilties incurred by the Assignor in connection with
or arising in any manner from the Assignee's nonperformance of the obligations assumed under
this Assignment Agreement, and (ix) if applicable, attaches the forms prescribed by the Internal
Revenue Service ofthe United States certifying that the Assignee is entitled to receive payments
under the Loan Documents without deduction or withholding of any United States federalincome taxes. .
8. GOVERNING LAW. This Assignment Agreement shall be governed by the
internal law, and not the law of conflcts, of the State of New York.
(,
9. NOTICES. Notices shall be given under this Assignment Agreement in the
manner set fort in the Credit Agreement. For the purpose hereof, the addresses ofthe paries
hereto (until notice of a change is delivered) shall be the addresses set forth in the attachment to
Schedule 1.
1 O. COUNTERPARTS; DELIVERY BY FACSIMILE. This Assignment Agreement
may be executed in counterparts. Transmission by facsimile or e-mail of an executed
counterpart ofthis Assignment Agreement shall be deemed to constitute due and suffcient
delivery of such counterpart and such facsimile or e-mail shall be deemed to be an original
counterpart of this Assignment Agreement.
IN WITNESS WHEREOF, the duly authorized offcers of the parties hereto have
executed this Assignment Agreement by executing Schedule 1 hereto as of the date first above
written.
SCHEDULE i
to Assignment Agreement
1. Description and Date of Credit Agreement: Term Loan Credit Agreement dated as of April 1,
2008 among Idaho Power Company, the Lenders part thereto and JPMorgan Chase Bank, N.A.,
as Administrative Agent.
2. Date of Assignent Agreement:
3.Assignee's Commitment (or
Outstanding Credit Exposure with
respect to terminated
Commitments) purchased
hereunder:$
4.Proposed Effective Date:
5.Non-standard Recordation Fee N/A*
Arrangement
lAssignorl Assignee
to pay i 00% of fee!
IFee waived by Administrative Agent!
(
Accepted and Agreed:
INAME OF ASSIGNOR!INAME OF ASSIGNEE!
By:
Title:
By:
Title:
ACCEPTED AND CONSENTED TO BY
INAME OF BORROWER! **
ACCEPTED AND CONSENTED TO BY
INAME OF ADMINISTRTIVE AGENT! **
By:
Title:
By:
Title:
*
**
If fee is split 50-50, pick N/A as option
Delete if not required by Credit Agreement
(
(Attachment to SCHEDULE i to ASSIGNMENT AGREEMENT
ADMISTRTIVE INORMTION SHEET
Attach Assignor's Administrative Information Sheet, which must
include notice addresses for the Assignor and the Assignee
(Sample form shown below)
ASSIGNOR INORMTION
Contact:
Name:
Fax No.:
Payment Information:
Name & ABA # of Destination Bank:
Account Name & Number for Wire Transfer:
Other Instructions:
Telephone No.:
Telex No.:
Answerback:
(Address for Notices for Assignor:
ASSIGNEE INORMTION
Credit Contact:
Name:
Fax No.:
Key Operations Contacts:
Booking Installation:
Name:
Telephone No.:
Fax No.:
Telex No.:
Answerback:
(
Telephone No.:
Telex No.:
Answerback:
Booking Installation:
Name:
Telephone No.:
Fax No.:
Telex No.
Answerback:
(Payment Information:
Name & ABA # of Destination Bank:
Account Name & Number for Wire Transfer:
Other Instructions:
Address for Notices for Assignee:
JPMORGAN CHASE BAN, N.A. INORMTION
Assignee wil be called promptly upon receipt of the signed agreement.
Initial Funding Contact:Subsequent Operations Contact:
Name:
Telephone No.:
Fax No.:
Name:
Telephone No.:
Fax No.:
(
Initial Funding Standards:
Eurodollar Base Rate funds two days after rates are set.
JPMorgan Chase Bank, N.A. Wire Instructions:
JPMorgan Chase Bank, N.A.
ABA Routing No. 021000021
Account Number: 90081 09962C0426
Account Name: Idaho Power Company
Attention: Walter H. Jones
Telephone: [phone]
Telecopy: [phone]
Reference: Idaho Power Company
Address for Notices for JPMorgan Chase Bank, N.A.:
JPMorgan Chase Bank, N.A.
10 S. Dearborn St.
Chicago, IL 60603
Mail Code: IL1-0090
Attention: Jennifer Fitzgerald
Telephone: [phone]
Telecopy: (312) 385- 1 762
(~
EXHITD
FORM OF WREN MONEY TRSFER INSTRUCTION
To: JPMorgan Chase Bank, National Association,
as Administrative Agent under the
Credit Agreement described below
Re: Term Loan Credit Agreement, dated as of Aprîl i, 2008 (as the same may be
amended, restated, supplemented or otherwise modified from time to time, the
"Credit Agreement"), by and among Idaho Power Company, an Idaho corporation
(the "Borrowet'), the Lenders from time to time part thereto and JPMorgan
Chase Bank, N.A., as administrative agent for the Lenders (the "AdministrativeAgent"). Capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned thereto in the Credit Agreement.
(
The Administrative Agent is specifically authorized and directed to act upon the
following stading money transfer instrctions with respect to the proceeds of Loans or other
extensions of credit from time to time until receipt by the Administrative Agent of a specific
written revocation of such instructions by the Borrower, provided, however, that the
Administrative Agent may otherwise transfer funds as hereafter directed in writing by the
Borrower in accordance with Section 13.1 of the Credit Agreement or based on any telephonic
notice made in accordance with Section 2.13 of the Credit Agreement.
Customer/Account Name Idaho Power Company
Transfer Funds To
For Account No.
Reference/Attention To
IDAHO POWER COMPANY
Date April 1,2008
(please Print)Signature
JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION Date April i, 2008
(Please Print)Signature
(
(EXIITE
FORM OF NOTE
$,2008
FOR VALUE RECEIVED, IDAHO POWER COMPAN, an Idaho corporation (the
"Borrower"), hereby promises to pay to the order of (the
"Lender"), at the offces of JPMorgan Chase Bank, N.A. (the "Administrative Agent") located at
ios. Dearborn St., Chicago, IL 60603 (or at such other place or places as the Administrative
Agent may designate), at the times and in the manner provided in the Term Loan Credit
Agreement, dated as of April i, 2008 (as amended, modified, restated or supplemented from time
to time, the "Credit Agreement"), among the Borrower, the Lenders from time to time parties
thereto, and JPMorgan Chase Bank, N.A., as Administrative Agent, the principal sum of
DOLLARS ($ ), or such lesser amount as may constitute the
unpaid principal amount of the Loan made by the Lender, under the terms and conditions ofthe
Credit Agreement. The defined terms in the Credit Agreement are used herein with the same
meaning. The Borrower also promises to pay interest on the aggregate unpaid principal amount
of this Note at the rates applicable thereto from time to time as provided in the Credit
Agreement.
(
This promissory note (this "Note") is one of a series of Notes referred to in the Credit
Agreement and is issued to evidence the Loan made by the Lender pursuant to the Credit
Agreement. All of the terms, conditions and covenants of the Credit Agreement are expressly
made a par of this Note by reference in the same manner and with the same effect as if set forth
herein at length, and any holder of this Note is entitled to the benefits of and remedies provided
in ,the Credit Agreement and the other Loan Documents. Reference is made to the Credit
Agreement for provisions relating to the interest rate, maturity, payment, prepayment and
acceleration of this Note.
In the event of an acceleration of the maturity of this Note, this Note shall become
immediately due and payable, without presentation, demand, protest or notice of any kind, all of
which are hereby waived by the Borrower. No failure to exercise, and no delay in exercising,
any rights hereunder on the part of the holder hereof shall operate as a waiver of such rights.
In the event this Note is not paid when due at any stated or accelerated maturity, the
Borrower agrees to pay, in addition to the principal and interest, all costs of collection, including
reasonable attorneys' fees.
This Note shall be governed by and construed in accordance with the internal laws of the
State of New York (including Sections 5-1401 and 5-1402 of the New York General Obligations
Law, but excluding all other choice oflaw and conflcts oflaw rules). The Borrower hereby
submits to the nonexclusive jurisdiction and venue of the federal and state courts located in New
York, New York, although the Lender shall not be limited to bringing an action in such courts.
(IN WITNESS WHEREOF, the Borrower has caused this Note to be executed by its
duly authorized corporate offcer as of the day and year first above written.
IDAHO POWER COMPANY, as the Borrower
By:
Title:
(~'"
(