HomeMy WebLinkAbout20090331Short-term Borrowing Agreement.pdf3_IDAHO POWER COMPANY
P.O. BOX 70
BOISE, IDAHO 83707 r~ i.::~i,....' 1':.:.
An IDACORP Company
2989 M.'R d I AM S; QJ PATRICK A. HARRINGTON
Corporate Secretary
March 30, 2009
Ms. Jean D. Jewell
Secreta
Idaho Public Utilities Commission
Statehouse
Boise, Idaho 83720
Re: In the Matter of the Application of Idaho Power Company for an Order
Authorizing up to $450,000,000 Aggregate Principal Amount at any One
Time Outstading 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 as
paricipating lenders. Idaho Power borrowed $170 milion under the Agreement for the
term of Februar 4,2009 through February 3, 2010. Idao 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 filing.
Sincerely,
tr1'1l~
Telephone (208) 388-2878, Fax (208) 388-6936
pharrington(gdahopower.com
t~'"I::
1~ß~ ~M~ 3 \ ~M 8; 08
TERM LOAN CREDIT AGREEMENT
among
IDAHO POWER COMPANY,
as Borrower,
THE LENDERS NAMED HEREIN
and
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent
J.P. MORGAN SECURITIES INC.
as
Lead Aranger and Sole Book Runner
Dated as of February 4, 2009
CHI 4546984v.7
EXECUTION COPY
Table of Contents
Page
ARTICLE i
DEFINITIONS
1.1. Definitions........................................................................................................................... .1
1.2. Other Interpretive Provisions. ..................... .......................................................................13
ARTICLE 2
THE CREDITS
2.1. Commitments.....................................................................................................................14
2.2. Required Payments; Termination. .....................................................................................14
2.3. Types of Advances; Minimum Amount of Each Advance................................................ 14
2.4. Fees ....................................................................................................................................15
2.5. Reduction or Termination of Aggregate Commitment.....................................................15
2.6. Optional Principal Payments..............................................................................................15
2.7. Requesting Loans ...............................................................................................................15
2.8. Conversion and Continuation of Outstanding Advances...................................................16
2.9. Changes in Interest Rate, etc..............................................................................................16
2.10. Rates Applicable After Default..........................................................................................17
2.11. Method ofPayment...................................................................~........................................17
2.12. N oteless Agreement; Evidence of Indebtedness.................................................. ............ ..17
2.13. Telephonic Notices ............................................................................................................18
2.14. Interest Payment Dates; Interest and Fee Basis .................................................................18
2.15. Notification of Advances, Interest Rates, Prepayments and Commitment
Reductions... ............................................... ........................................................................19
2.16. Lending Installations............................ ................................................................ ..............19
2.17. Non-Receipt of Funds by the Administrative Agent .........................................................19
2.18. !Reserved.! ........................................................................................................................19
2.19. Replacement of Lender ........................... ................... ........................................................19
ARTICLE 3
YIELD PROTECTION; TAXES
3.1. Yield Protection............................................................................................................... ..20
3.2. Changes in Capital Adequacy Regulations........................................................................21
3.3 . Availability of Types of Advances...................................................................... ..............21
3.4. Funding Indemnification....................................................................................................21
3.5. Taxes. .................................................................................................................................21
3.6. Alternate Lending Installation; Lender Statements; Surival ofIndemnity ......................24
Table of Contents
Page
ARTICLE 4
CONDITIONS PRECEDENT
4.1. Closing Date.......................................................................................................................25
ARTICLES
REPRESENTATIONS AND WARTIES
5.1. Existence and Standing............................................ ......................................................... .26
5.2. Authorization and Validity ................................................................................................26
5.3. No Conflict; Government Consent ....................................................................................26
5.4. Financial Statements ..........................................................................................................27
5.5. Material Adverse Change ..................................................................................................27
5.6. Taxes ..................................................................................................................................27
5.7. Litigation and Contingent Obligations...............................................................................27
5.8. Subsidiaries........................................................................................................................27
5.9. ERISA ................................................................................................................................28
5.10. Accuracy of Information.................................................................. ..................................28
5.11. Regulation U ......................................... ........................................................................... ..28
5.12. Material Agreements..........................................................................................................28
5.13. Compliance With Laws......................................................................................................28
5.14. Ownership of Properties ....................................................................................................28
5.15. Plan Assets; Prohibited Transactions.................................................................................29
5.16. Environmental Matters.......................................................................................................29
5.17. Investment Company Act ....... ................................. ......................................................... .29
5.18. OFAC; PATRIOT Act.......................................................................................................29
ARTICLE 6
COVENANTS
6.1. Financial Reporting............................................................................................................29
6.2. Use of Proceeds...................................................... ............................................................31
6.3. Notice of Default, etc.........................................................................................................31
6.4. Conduct of Business .................................................................................................... ......31
6.5. Taxes..................................................................................................................................31
6.6. Insurance .............................................................................................................................31
6.7. Compliance with Laws .................................................................................. ....................32
6.8. Maintenance of Properties .................................................................................................32
6.9. Inspection...........................................................................................................................32
6.10. Merger and Sale of Assets .................................................................................................32
6.11. Liens...................................................................................................................................32
6.12. Leverage Ratio ...................................................................................................................34
6.13. Investments and Acquisitions ............................................................................................34
11
Table of Contents
Page
6.14. Subsidiary Dividend Restrictions ......................................................................................34
6.15. Affiliates ............................................................................................................................34
6.16. OFAC, PATRIOT Act Compliance...................................................................................35
ARTICLE 7
DEFAULTS
ARTICLES
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
8.1. Acceleration. ......................................................................................................................37
8.2. Amendments ......................................................................................................................37
8.3. Preservation of Rights.................................................. ......................................................38
ARTICLE 9
GENERAL PROVISIONS
9.1. Survival of Representations...............................................................................................3 8
9.2. Governental Regulation ..................................................................................................38
9.3. Headings ............................................................................................................................38
9.4. Entire Agreement...............................................................................................................38
9.5. Several Obligations; Benefits of this Agreement..............................................................39
9.6. Expenses; Indemnification.................................................................................................39
9.7. Numbers of Documents ................................................................................ .....................40
9.8. Accounting.........................................................................................................................40
9.9. Severability of Provisions ..................................................................................................40
9.10. Nonliability of Lenders................................................... ...................................................40
9.11. Confidentiality ...................................................................................................................40
9.12. Nonreliance ........................................................................................................................41
9.13. Disclosure ..........................................................................................................................41
9.14. PATRIOT Act Notice ........................................................................................................41
9.15. Counterparts...................................................................................................................... .41
ARTICLE 10
THE ADMINISTRATIVE AGENT
10.1. Appointment; Nature of Relationship............................................................................ ....41
10.2. Powers................................................................................................................................42
10.3. General Immunity ..............................................................................................................42
10.4. No Responsibility for Loans, Recitals, etc.........................................................................42
10.5. Action on Instructions of Lenders........................................................ ..............................42
11
Table of Contents
Page
10.6. Employment of Administrative Agents and Counsel ........................................................43
10.7. Reliance on Documents; Counsel.. ...... ........... ............. ...................................................... 4 3
10.8. Administrative Agent's Reimbursement and Indemnification ..........................................43
10.9. Notice ofDefault................................................................................................................44
10.10. Rights as a Lender..............................................................................................................44
10.11. Lender Credit Decision......................................................................................................44
10.12. Successor Administrative Agent........................................................................................44
10.13. Administrative Agent and Aranger Fees ..........................................................................45
10.14. Delegation to Affiliates......................................................................................................45
10.15. Other Agents......................................................................................................................45
ARTICLE 11
SETOFF; RATABLE PAYMENTS
11.1. Setoff................................................................................................................................. .46
11.2. Ratable Payments...............................................................................................................46
ARTICLE 12
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
12.1. Successors and Assigns......................................................................................................46
12.2. Participations......................................................................................................................47
12.3. Assignents.......................................................................................................................48
12.4. Dissemination of Information................................................ ............................................49
12.5. Tax Treatment....................................................................................................................49
ARTICLE 13
NOTICES
13.1. Notices. ..............................................................................................................................49
13.2. Change of Address.............................................................................................................50
ARTICLE 14
CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL
14.1. CHOICE OF LAW ............................................................................................................50
14.2. CONSENT TO JURISDICTION.......................................................................................50
14.3. WAIVER OF mRYTRIAL..............................................................................................51
iv
Schedule I
Schedule 5.8
Schedule 5.12
Schedule 5.14
Schedule 13.1
EXHIBIT A
EXHIBITB
EXHIBIT C
EXHIBITD
EXHIBITE
Table of Contents
Page
Commitments
List of Subsidiaries
Agreements which restrict Subsidiary 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 Assignment Agreement
!Reservedl
Form of Note
v
TERM LOAN CREDIT AGREEMENT
This Term Loan Credit Agreement, dated as of February 4, 2009 is made among Idaho
Power Company, an Idaho corporation, the Lenders, and JPMorgan Chase Bank, N.A., as
Administrative Agent for the Lenders.
In consideration of the mutul provisions, covenants and agreements herein contained,
the parties hereto hereby agree as follows:
ARTICLE 1
DEFINITIONS
1.1. Definitions. As used in this Agreement:
"Acquisition" means any transaction, or any series of related transactions, consummated
on or after the Closing Date, by which the Borrower or any of its Subsidiaries (i) acquires any
going business or all or substantially all of the assets of any firm, corporation or limited liability
company, or division thereof, whether through purchase of assets, merger or otherwise 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
ordinary 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 outstanding ownership interests of a partership or limited liability company.
"Administrative Agent" means JPMorgan in its capacity as administrative agent (i.e.,
contractual representative) of the Lenders pursuat to Artcle 10, and not in its individual
capacity as a Lender, and any successor Administrative Agent appointed pursuant to Article 10.
"Administrative Questionnaire" means an administrtive questionnaire, substantially in
the form supplied by the Administrative Agent, completed by a Lender and fuished to the
Administrative Agent in connection with this 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 ofthe same Type and, in the case of Eurodollar Advances, for
the same Interest Period.
"Affected Lender" is defined in Section 2.19.
"Affiliate" 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 lO% 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
through ownership of stock, by contract or otherwise.
"Aggregate Commitment" means the aggregate of the Commitments of all the Lenders,
as reduced from time to time pursuant 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 manner consistent with that used in preparing financial
statements referred to in Section S.4.
"Alternate Base Rate" means, for any day, a fluctuating rate of interest per annum equal
to the highest of (i) the Prime Rate in effect on such day, (ii) the sum of (a) the Federal Funds
Effective Rate in effect on such day plus (b) ~% per annum and (iii) an amount equal to (a) the
LIBO Reference Rate on such day (or if such day is not a Business Day, the immediately
preceding Business Day), plus (b) 1%. Any change in the Alternate Base Rate due to a change in
the Prime Rate, the Federal Funds Effective Rate or the LIBO Reference Rate shall be effective
from and including the effective date of such change in the Prime Rate, the Federal Funds
Effective Rate or the LIBO Reference Rate, respectively.
. "Applicable Margin" means, for any day, with respect to any Floating Rate Advance or
Eurodollar Advance, as the case may be, the applicable rate per annum set forth below under the
caption "Floating Rate Spread" or "Eurodollar Spread", as the case may be, based upon the
ratings by Moody's and S&P, respectively, applicable on such date to the Index Debt (whether
such rating is preliminary or otherwise):
Index Debt Eurodollar Floating Rate Spread
Ratings Spread
Category 1
A3 or better or A-or better 1. 75%0.75%
Category 2
BaalorBBB+2.00%1.00%
Category 3
Baa20rBBB 2.50%1.50%
Category 4
Baa3 or lower or BBB- or
lower 3.00%2.00%
For purposes of the foregoing, (i) if either Moody's or S&P shall not have in effect a
rating for the Index Debt (other than by reason of the circumstances referred to in the last
sentence of this definition), then such rating agency shall be deemed to have established a rating
in Category 4; (ii) ifthe ratings established or deemed to have been established by Moody's and
S&P for the Index Debt shall fall within different Categories, the Applicable Margin shall be
based on the higher ofthe two ratings, unless one of the two ratings is (1) two Categories lower
2
than the other, in which case the Applicable Margin shall be determined by reference to the
Category that is the intermediate of the two ratings or (2) more than two Categories lower than
the other, in which case the Applicable Margin shall be determined by reference to the Category
that is the higher ofthe two intermediate ratings; and (iii) if the ratings established or deemed to
have been established by Moody's and S&P for the Index Debt shall be changed (other than as a
result ofa change in the rating system of Moody's or S&P), such change shall be effective as of
the date on which it is first announced by the applicable rating agency, irrespective of when
notice of such change shall have been fuished by the Borrower to the Administrative Agent
and the Lenders pursuant to Section 6.1 or otherwise. Each change in the Applicable Margin
shall apply during the period commencing on the effective date of such change and ending on the
date immediately preceding the effective date of the next such change. If the rating system of
Moody's or S&P shall change, or if either such rating agency shall cease to be in the business of
rating corporate debt obligations, the Borrower and the Lenders shall negotiate in good faith to
amend this definition to reflect such changed rating system or the unavailability of ratings from
such rating agency and, pending the effectiveness of any such amendment, the Applicable
Margin shall be determined by reference to the rating most recently in effect prior to such change
or cessation.
"Approved Fund" means any Person (other than a natural person) that is engaged in
making, purchasing, holding or investing in bank loans and similar extensions of credit in the
ordinary course of its business and that is administered or managed by (a) a Lender, (b) an
Affliate of a Lender or (c) an entity or an Affliate of an entity that administers or manages a
Lender.
"Aranger" means J.P. Morgan Securties Inc., and its successors, in its capacity as Lead
Arranger and Sole Book Runer.
"Authorized Officer" means any of the Chief Executive Officer, President, Chief
Financial Officer, Vice President or Treasurer ofthe 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 banks generally are
open in New York, New York and London, England for the conduct of substantially all of their
commercial lending activities, interbank wire transfers can be made on the Fedwire system and
dealings in United States dollars are carred on in the London interbank market and (ii) for all
other puroses, a day (other than a Saturday or Sunday) on which bank generally are open in
New York, New York for the conduct of substantially all of their commercial lending activities
and interbank wire transfers can be made on the Fedwire system.
"Capitalized Lease" of a Person means any lease of Propert by such Person as lessee,
which would be capitalized on a balance sheet of such Person prepared in accordance with
Agreement Accounting Principles.
3
"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-l or
better by Moody's, (iii) demand deposit accounts maintained in the ordinary course of business,
and (iv) certificates of deposit issued by and time deposits with commercial banks (whether
domestic or foreign) having capital and surplus in excess of $1 00,000,000; 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 meaning of Rule 13d- 3 of the Securities and
Exchange Commission under the Securties Exchange Act of 1934) of20% or more ofthe
outstanding 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 governental rule,
regulation or order), or any determination of a court or governmental authority, in each case that
becomes effective after 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" means, 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 forth
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 forth 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 pursuant to the terms hereof.
"Condemnation" is defined in Section 7(i).
"Consolidated Indebtedness" means at any time the Indebtedness of the Borrower and its
Subsidiaries calculated on a consolidated basis as of such time; provided, however that the
aggregate outstanding Indebtedness evidenced by Hybrid Securities shall be excluded to the
extent that the total book value of such Hybrid Securities does not exceed i 5% of Consolidated
Total Capitalization as of such time.
"Consolidated Net Worth" means at any time the consolidated stockholders' equity of the
Borrower and its Subsidiaries calculated on a consolidated basis as of such time.
4
"Consolidated Total Capitalization" means at any time, without duplication, the sum of
(i) Consolidated Indebtedness, (ii) Consolidated Net Worth and (iii) the aggregate outstanding
amount of Hybrid Securities, each calculated as of such time.
"Contingent Obligation" of a Person means any agreement, undertaking or arrangement
by which such Person assumes, guarantees, endorses, contingently agrees to purchase or provide
funds for the payment of, or otherwise 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 otherwise assures any creditor of such other Person
against loss, including any comfort letter, operating agreement, take or pay contract or the
obligations of any such Person as general parter of a partership with respect to the liabilities of
the partership.
"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 Subsidiaries, are treated as a single
employer under Section 414 of the Code.
"Default" means an event described in Artcle 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, (iii) emissions, discharges or releases of pollutants, contaminants,
hazardous substances or wastes into surace water, ground water or land, or (iv) the manufactue,
processing, distrbution, use, treatment, storage, disposal, transport or handling of pollutants,
contaminants, hazardous substances or wastes or the clean-up or other remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of 1974.
"Eurodollar Advance" means a Loan, or portion thereof, which, except as otherwise
provided in Section 2.10, bears interest at the applicable Eurodollar Rate.
"Eurodollar Base Rate" means, with respect to any Eurodollar Advance for any Interest
Period, the rate appearing 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 comparable to those curently provided on such page of such service, as determined
by the Administrative Agent from time to time for puroses of providing quotations of interest
rates applicable to dollar deposits in the London interbank market) at approximately 11 :00 a.m.,
London time, two Business Days prior to the commencement of such Interest Period, as the rate
for dollar deposits with a maturity 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
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 funds in the London
5
interbank 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 annum (rounded upwards, if necessary, 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 jurisdiction in which the Administrative Agent's or such Lender's principal executive
offce or such Lender's applicable Lending Installation is located, or (iii) the jursdiction in
which the Lender, Lending Installation or the Administrative Agent carres on a trade or
business.
"Existing Credit Agreement" means that certain Term Loan Credit Agreement, dated as
of April 1,2008, by and among the Borrower, the lenders from time to time parties thereto, and
JPMorgan Chase Bank, N.A., as administrative agent.
"Facility Termination Date" means February 3, 2010.
"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 arranged 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
necessary, to the next 1/l00 of 1 %) of the quotations for such day for such transactions received
by the Administrative Agent from three Federal funds brokers of recognized standing selected by
it.
"Fee Letter" means the letter agreement dated February 4,2009 among the Borrower, the
Administrative Agent and the Arranger.
"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 Bank Trust
Company Americas (formerly known as Bankers Trust Company) and R.G. Page (Stanley Burg
successor individual trstee) are Trustees, as it may from time to time be further amended,
supplemented or otherwise modified.
"Floating Rate Advance" means a Loan, or portion thereof, which, except as otherwise
provided in Section 2.10, bears interest at the Alternate Base Rate plus the Applicable Margin.
"Hybrid Securties" shall mean any hybrid securities, including any trst preferred
securities, deferrable interest subordinated debt securities, mandatory convertible debt securities
or other hybrid securties issued by the Borrower or any Subsidiary or financing vehicle of the
Borrower that (i) have an original maturity of at least twenty (20) years, (ii) require, absent an
6
event of default with respect to such securties, no repayments or prepayments and no mandatory
redemptions or repurchases, in each case, prior to the date which is ninety-one (91) days after the
occurence ofthe Facility Termination Date and (iii) permit the Borrower or any such Subsidiary
or any such financing vehicle ofthe 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 ordinary course of such Person's business payable on terms
customary in the trade), (iii) 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 such
Person, (iv) obligations which are evidenced by notes, acceptances, or other instrments,
(v) 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,
(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 sinking fud payments are due, by a fixed
date, (xi) Off-Balance Sheet Liabilities, (xii) any other obligation for borrowed money or other
financial accommodation which in accordance with Agreement Accounting Principles would be
shown as a liability on the consolidated balance sheet of such Person and (xiii) amounts
outstanding under a Permitted Receivables Securtization. For puroses of determining
Indebtedness, the "principal amount" of the obligations of the Borrower or any of its Subsidiaries
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 Subsidiary would be
required to pay if such Rate Management Obligation were terminated at such time of
determination.
"Indemnitee" is defined in Section 9.6(b).
"Index Debt" means senior, unsecured, long-term indebtedness for borrowed money of
the Borrower that is not guaranteed by any other Person or subject to any other credit
enhancement.
"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 pursuant to this
Agreement. Each Interest Period shall end on the day which corresponds numerically to such
date one, two, three or six months thereafter, 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, third or sixth succeeding month, such Interest Period shall end on the last
Business Day of such next, second, third or sixth succeeding month. If an Interest Period would
otherwise 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 commission, travel and
similar advances to offcers and employees made in the ordinar course of business), extension
of credit (other than accounts receivable arising in the ordinar course of business on terms
7
customary in the trade) or contrbution of capital by such Person; stocks, bonds, mutual funds,
partership interests, notes, debentues or other securties owned by such Person; any deposit
accounts and certificate of deposit owned by such Person; and strctured notes, derivative
financial instrents and other similar instrments or contracts owned by such Person.
"JPMorgan" means JPMorgan Chase Bank, N.A. and its successors.
"Lenders" means the lending institutions listed on the signature pages of this Agreement
and their respective successors and assigns.
"Lending Installation" means, with respect to a Lender or the Administrative Agent, the
offce, branch, subsidiar or Affiiate of such Lender or the Administrative Agent specified in its
Administrative Questionnaire or otherwise 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 instrment which is
issued upon the application of such Person or upon which such Person is an account part or for
which such Person is in any way liable.
"LIBO Reference Rate" means, for any day, the rate appearing 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 comparable to those curently provided on
such page of such service, as determined by the Administrative Agent from time to time for
purposes of providing quotations of interest rates applicable to dollar deposits in the London
interbank market) at approximately 1 i :00 a.m. London time on such day as the rate for United
States dollar deposits for a one month interest period.
"Lien" means any lien (statutory or other), mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance or preference, priority or other security agreement or
preferential arangement of any kind or nature 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 this 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 banks
generally are open in London, England for the conduct of substantially all of their commercial
lending activities and dealings are carred on in the London interbank market.
"Material Adverse Effect" means a material adverse effect on (i) the business, Propert,
condition (financial or otherwise), results of operations, or prospects of the Borrower and its
Subsidiaries taken as a whole, (ii) the ability of the Borrower to perform its obligations under the
Loan Documents, or (iii) the validity or enforceability of any of the Loan Documents or the
rights or remedies of the Administrative Agent or the Lenders thereunder.
8
"Material Indebtedness" means Indebtedness (other than Obligations) of the Borrower or
any of its Subsidiaries, in an aggregate principal amount exceeding $25,000,000 (or its
equivalent in any other currency).
"Material Subsidiary" of the Borrower means any Subsidiary (a) whose gross revenues
for the fiscal year in respect of which such statements and related balance sheet were prepared
(or the last full fiscal year in the case of quarterly 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 Subsidiaries for such fiscal year.
"Moody's" means Moody's Investors Service, Inc.
"Multiemployer Plan" means a Plan maintained pursuant to a collective bargaining
agreement or any other arrangement to which the Borrower or any member of the Controlled
Group is a part 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" means all unpaid principal of and accrued and unpaid interest on the
Loans, all accrued and unpaid fees and all expenses, reimbursements, indemnities and other
obligations of the Borrower to the Lenders or to any Lender, the Administrative Agent or any
indemnified part arising under the Loan Documents.
"OFAC" means the U.S. Departent of the Treasur's Office of Foreign Assets Control,
and any successor thereto.
"Off-Balance Sheet Liability" 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 liability under any Sale and Leaseback Transaction which is not a Capitalized
Lease, (iii) any liability under any so-called "synthetic lease" transaction entered into by such
Person, or (iv) any obligation arising 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 this clause (iv) all Operating Leases.
"Operating Lease" of a Person means any lease of Propert (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).
"Outstanding Credit Exposure" means, as to any Lender at any time, the aggregate
principal amount of all Loans made by such Lender outstanding at such time.
9
"Parent" means IDACORP, Inc., an Idaho corporation, and its successors and assigns.
"Participants" is defined in Section 12.2(a).
"PATRIOT Act" means the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstrct Terrorism (USA PATRIOT Act, Title III
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 regulations 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.
"Permitted Receivables Securitization" means a limited recourse or non-recourse sale,
assignment or contrbution of accounts receivable and related records, collateral and rights of the
Borrower and/or one or more of its Subsidiaries to one or more special purpose 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 venture, partnership, limited
liability company, association, enterprise, trst or other entity or organization, or any government
or political subdivision or any agency, departent or instrmentality 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 liability.
"Prime Rate" means the per annum interest rate publicly announced from time to time by
JPMorgan, to be its prime rate in effect at its principal office 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 announced.
"Propert" of a Person means any and all propert, 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 Commitment 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, arising,
evidenced or acquired (including all renewals, extensions and modifications thereof and
substitutions therefor), under (i) any and all Rate Management Transactions, and (ii) any and all
10
cancellations, buy backs, reversals, terminations or assignents of any Rate Management
Transactions.
"Rate Management Transaction" means any transaction (including an agreement with
respect thereto) now existing or hereafter 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 trnsaction, collar transaction, forward transaction,
currency swap transaction, cross-curency rate swap transaction, currency 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 currencies, commodity
prices, equity prices or other financial measures.
"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 offcial
interpretation of said Board of Governors relating to reserve requirements applicable to member
banks 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 banks for the
purose of purchasing or carring margin stocks applicable to member banks 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 within 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) ofthe 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 dermed 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 Propert by any
Person with the intent to lease such Propert as lessee.
11
"Sanctioned Country" means a country subject to a sanctions program identified on the
list maintained by OFAC and available at
htt://ww.treas.gov/offces/enforcement/ofac/sanctions/, or as otherwise published from time to
time.
"Sanctioned Person" means (i) a Person named on the list of Specially Designated
Nationals or Blocked Persons maintained by OFAC available at
htt://www.treas.gov/offces/enforcement/ofac/sdn/t11sdn.pdf, or as otherwise published from
time to time, or (ii) (A) an agency ofthe governent of a Sanctioned Country, (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.
"SEC Reports" means the following reports: (i) the Borrower's Quarterly Reports on
Form 10-Q filed with the Securities and Exchange Commission for the quarters ended March 3l,
2008, June 30, 2008 and September 30, 2008 and (ii) those certain reports of the Borrower on
Form 8.K filed with or furnished to the Securities and Exchange Commission on March 3,
March 26, April 2, April 3, June 4, July 1, July 8, July 30, September 16, September 19, October
3 and October 15,2008 and January 13, January 23, and February 2,2009.
"Single Employer Plan" means a Plan maintained 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" means 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 funding (currently referred
to as "Eurocurrency Liabilities" in Regulation D). Such reserve percentages shall include those
imposed pursuant to such Regulation D. Eurodollar Advances shãll be deemed to constitute
eurocurency funding 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.
"Subsidiary" ofa Person means (i) any corporation more than 50% of the outstanding
securties having ordinary 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 Subsidiaries, or (ii) any partership, limited liability company, association,
joint venture or similar business organization more than 50% of the ownership interests having
ordinary voting power of which shall at the time be so owned or controlled. Unless otherwise
expressly provided, all references herein to a "Subsidiary" shall mean a Subsidiary of the
Borrower.
"Substantial Portion" means, with respect to the Propert of the Borrower and its
Subsidiaries, Propert which (i) represents more than 10% of the consolidated assets of the
Borrower and its Subsidiaries as would be shown in the consolidated financial statements of the
Borrower and its Subsidiaries as of the beginning of the twelve-month period ending with the
12
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 Subsidiaries as
reflected in the financial statements referred to in clause (i) above.
"Taxes" means any and all present or futue taxes, duties, levies, imposts, deductions,
charges or withholdings, and any and all liabilities with respect to the foregoing, but excluding
Excluded Taxes and Other Taxes.
"Transferee" is defined in Section 12.4.
"Iv" is defined in Section 2.3.
"Unfuded Liabilities" 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 actuarial 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.
"Wholly-Owned Subsidiary" of a Person means (i) any Subsidiary all of the outstanding
voting securties of which shall at the time be owned or controlled, directly or indirectly, by such
Person or one or more Wholly-Owned Subsidiaries of such Person, or by such Person and one or
more Wholly-Owned Subsidiaries of such Person, or (ii) any partership, limited liability
company, association, joint ventue or similar business organization i 00% of the ownership
interests having ordinary voting power of which shall at the time be so owned or controlled.
1.2. Other Interpretive Provisions.
(a) The meanings of defined terms are equally applicable to the singular and
plural forms of such terms.
(b) Section, Schedule and Exhibit references are to this Agreement unless
otherwise 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 "through" means "to and including."
(e) Unless otherwise expressly specified, all references herein to a particular
time shall mean New York, New York time.
(f) Unless otherwise expressly provided herein, (i) references to agreements
(including this Agreement), other contractual instrments and organizational documents shall be
13
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 regulation.
ARTICLE 2
THE CREDITS
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 this Section 2.1 shall consist of Loans
made by each Lender ratably in proportion to such Lender's respective Pro Rata Share ofthe
Aggregate Commitment. No Loan shall be reborrowed once repaid.
2.2. Required Payments; Termination.
(a) Except to the extent due or paid sooner pursuant to the provisions ofthis
Agreement, the Borrower shall repay to the Lenders the aggregate outstanding principal amount
of each Loan on the Facility Termination Date.
(b) Notwithstanding anything to the contrary 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 Facility
Termination Date.
(c) Prior to or within one (1) Business Day of the receipt of proceeds related
to the remarketing of any Bonds, the Borrower shall repay or prepay (as the case may be) the
then-outstanding Loans by paying to the Administrative Agent, for the ratable account of the
Lenders based upon the Lenders' respective Pro Rata Shares, an amount equal to the sum of (i)
the aggregate principal amount of the Bonds remarketed plus (ii) all accrued and unpaid interest
on the principal amount of Loans so repaid or prepaid; provided that if a Eurodollar Advance is
outstanding, and the proceeds of the remarketing of any Bonds are received prior to a date that is
the end of the Interest Period for such Eurodollar Advance, the Borrower shall repay or prepay
the amount set forth above within five (5) Business Days of the receipt of proceeds related to
such remarketing. As used herein, "Bonds" shall mean (i) the $116,300,000 Sweetwater County,
Wyoming Pollution Control Revenue Refunding Bonds (Idaho Power Company Project) Series
2006 and (ii) the $49,800,000 Humboldt County, Nevada Pollution Control Revenue Refunding
Bonds (Idaho Power Company Project) Series 2003.
2.3. Types of Advances; Minimum Amount of Each Advance. The Loans may be
comprised of Floating Rate Advances or Eurodollar Advances (each, a "~" of Advance), or a
combination thereof, selected by the Borrower in accordance wìth Sections 2.7 and 2.8. Each
Eurodollar Advance shall be in the amount of $5,000,000 or a higher integral multiple of
14
$100,000, and each Floating Rate Advance shall be in the amount of $5,000,000 or a higher
integral multiple of $1 00,000.
2.4 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 earned when paid and shall not be refundable
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 manner
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 outstanding Floating Rate Advances or, in an aggregate amount of
$5,000,000 or a higher integral multiple of $100,000, any portion of the outstanding Floating
Rate Advances upon one (I) Business Day's prior notice to the Administrative Agent. The
Borrower may from time to time pay, subject to the payment of any fuding indemnification
amounts required by Section 3.4 but without penalty or premium, all outstanding Eurodollar
Advances or, in an aggregate amount of $5,000,000 or a higher integral multiple of $100,000,
any portion of the outstanding Eurodollar Advances upon three (3) Business Days' prior notice
to the Administrative Agent.
2.7. Requesting Loans. In order to obtain the Loans hereunder (excluding, for the
avoidance of doubt, conversions of outstanding 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 11 :00 a.m. at least one (I) Business Day before the Closing Date to the
extent such Loans wil constitute a Floating Rate Advance, and one (1) Business Day before the
Closing Date to the extent such Loans wil constitute a Eurodollar Advance (provided, that any
request for a Eurodollar Advance shall be accompanied by a wrtten agreement to indemnify the
Lenders for loss or costs of the tye described in Section 3.4 notwithstanding that this
Agreement may not yet be effective), specifying:
(i) the date of such Advance, which shall be the Closing Date and a Business
Day,
(ii) the aggregate amount of such Advance,
(iii) the Type of Advance selected, and
(iv) in the case of a Eurodollar Advance, the Interest Period applicable thereto.
15
Not later than 1 :00 p.m. on the Closing Date, each Lender shall make available its Pro Rata
Share of the Loans in funds immediately available to the Administrative Agent at its address
specified pursuant to Article 13. The Administrative Agent wil make the funds 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 or Section 2.2(c). Each Eurodollar Advance shall continue as a Eurodollar Advance
until the end ofthe then applicable Interest Period therefor, at which time such Eurodollar
Advance shall be automatically converted into a Floating Rate Advance unless (x) such
Eurodollar Advance is or was repaid in accordance with Section 2.6 or Section 2.2(c) 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 part 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
(iii) 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 outstanding
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
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 annum equal to the Floating Rate for such day. Changes in the rate of
interest on that portion of any Loan maintained as a Floating Rate Advance wil take effect
simultaneously with each change in the Alternate Base Rate.
(b) Each Eurodollar Advance shall bear interest on the outstanding 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 after the
Facility Termination Date.
16
2. I O. Rates Applicable After Default. Notwithstading anyting to the contrary
contained in Sections 2.7, 2.8 or 2.9, during 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 continuance 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 annum and (ii) each Floating Rate
Advance shall bear interest at a rate per annum equal to the Alternate Base Rate in effect from
time to time plus 2% per annum; provided that durg the continuance of a Default under
Sections 7(g) or 7(h), the interest rates set fort in clauses (i) and (ii) above shall be applicable
to all Advances without any election or action on the part of the Administrative Agent or any
Lender.
2.11. Method of Payment. All payments of the Obligations hereunder shall be made,
without setoff, deduction, or counterclaim, in immediately available funds 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 Agent for 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
receiyed at its address specified pursuant to Artcle 13 or at any Lending Installation specified in
a notice received by the Administrative Agent from such Lender. The Administrative Agent is
hereby authorized to charge any account of the Borrower maintained with JPMorgan for each
payment of principal, interest and fees as it becomes due hereunder.
2.12. Noteless Agreement; Evidence ofIndebtedness.
(a) Each Lender shall maintain in accordance with its usual 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 Administrative Agent shall also maintain the Register pursuant to
Section 12.3(c) and subaccounts for each Lender in which (taken together) it wil record (a) the
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 pursuant 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
Administrative Agent or any Lender to maintain such accounts, such Register or such
subaccount, as applicable, or any error therein shall not in any manner affect the obligation of the
Borrower to repay the Obligations in accordance with their terms.
l7
(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 funds 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
confirmation is requested by the Administrative Agent or any Lender, of each telephonic notice
signed by an Authorized Officer. 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 manifest 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 first such date to occur after the date hereof, on any date on
which such Floating Rate Advance is prepaid, whether due to acceleration or otherwise, and at
the Facility Termination Date. Interest accrued on that portion 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 otherwise, and at the Facility 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 three-month interval during such Interest Period.
(c) Interest on Floating Rate Advances bearing interest at the Prime Rate shall
be calculated for actual days elapsed on the basis of a 365, or when appropriate, 366 day year.
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.
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2.15. Notification of Advances. Interest Rates. Prepayments and Commitment
Reductions. Promptly after receipt thereof, the Administrative Agent wil notify each Lender of
the contents of the Borrowing Notice and each Conversion/Continuation Notice and repayment
notice received by it hereunder. The Administrtive Agent wil notify each Lender of the interest
rate applicable to each Eurodollar Advance promptly upon determination of such interest rate
and wil 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 Installation from time to time.
All terms of this 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 Artcle 13, designate replacement or additional Lending Installations through
which Loans wil 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
Administrative 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 Administrative Agent recovers such amount at a rate per
annum equal to (x) in the case of payment by a Lender, the Federal Funds Effective Rate for
such day for the first three (3) days and, thereafter, 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. !Reserved-!
2.19. Replacement of Lender. Ifthe 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 affected an "Affected Lender"), the Borrower may elect,
if such amounts continue to be charged or such suspension is still effective, to replace such
Affected Lender as a Lender part to this Agreement, provided that no Default or Unmatured
Default shall have occured and be continuing at the time of such replacement, and provided
further that, concurrently with such replacement, (i) another bank or other entity which is
reasonably satisfactory to the Borrower and the Administrative 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
assignent substantially in the form of Exhibit C and to become a Lender for all purposes under
19
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 funds 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 3.5, 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.l. Yield Protection. If, on or after the Closing Date, the adoption of any law or any
governental or quasi governmental 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-governmental authority, central bank 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 bank or comparable agency:
(i) subjects any Lender or any applicable Lending Installation to any Taxes,
or changes the basis of taxation of payments (other than with respect to Excluded Taxes
or to any increased costs from taxes which wil 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
Installation (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 Installation) of making, funding or maintaining its
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 return 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.
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3.2. Changes in Capital Adequacy Regulations. If a Lender determines the amount of
capital required or expected to be maintained by such Lender, any Lending Installation of such
Lender, or any corporation controlling such Lender is increased as a result of a Change, then,
within fifteen (15) days of demand by such Lender, the Borrower sháll pay such Lender the
amount necessary to compensate for any shortfall in the rate of retu 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 taking 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 change in any other law,
governental or quasi governmental rule, regulation, policy, guideline, interpretation, or
directive (whether or not having the force of law) after 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 controlling 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 Banking Regulation and Supervisory Practices Entitled "International Convergence of Capital
Measurements and Capital Standards," including transition rules, and any amendments to such
regulations adopted prior to the Closing Date.
3.3 . Availability of Types of Advances. If any Lender determines that maintenance of
its Eurodollar Advances at a suitable Lending Installation would violate any applicable law, rule,
regulation, 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 fund Eurodollar Advances
are not available or (ii) the interest rate applicable to Eurodollar Advances does not accurately
reflect the cost of making or maintaining Eurodollar Advances, then the Administrative Agent
shall suspend the availability 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.
3.4. 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 otherwise, 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 wil indemnify each
Lender for any loss or cost incurred by it resulting therefrom, including any loss or cost in
liquidating or employing deposits acquired to fund or maintain 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 necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section 3.5) 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,
21
(c) the Borrower shall pay the full amount deducted to the relevant authority in accordance with
applicable law and (d) the Borrower shall furnish to the Administrative Agent the original copy
of a receipt evidencing payment thereof within thirt (30) days after such payment is made.
(b) In addition, the Borrower hereby agrees to pay any present or futue stamp
or documentary taxes and any other excise or propert 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 otherwise 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 this Section 3.5) paid by the Administrative Agent or such
Lender and any liability (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 indeinification shall be
made within thirt (30) days of the 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 witholding tax under
the law of the jurisdiction in which the Borrower is resident for tax purposes, or any treaty to
which such jurisdiction is a party, 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 withholding or at a reduced rate
of withholding. 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.
Without limiting the generality of the foregoing, in the event that the Borrower is resident
for tax purposes 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 of the 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 eligibility for benefits of an income tax treaty to which the United States of
America is a party,
(ii) duly completed copies of Internal Revenue Service Form W-8ECI,
22
(iii) duly completed copies of Internal Revenue Service 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 withholding tax and payments of interest hereunder,
(v) in the case ofa 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" (within the meaning of section 871(h)(3)(B) of
the Code) of the Borrower (or any Affiliate thereof) and (C) a "controlled foreign
corporation" related to the Borrower or any Affiliate thereof (within the meaning of
section 864(d)(4) ofthe 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 withholding tax duly completed
together with such supplementa documentation as may be prescribed by applicable law
to permit the Borrower to determine the withholding or deduction required to be made.
(e) For any period during which a Non-U.S. Lender has failed to provide the
Borrower with an appropriate form pursuant to Section 3.S(d) (unless such failure is due to a
change in treaty, law or regulation, or any change in the interpretation or administration thereof
by any governental authority, occuring subsequent to the date on which a form originally was
required to be provided) or Section 3.S(l), such Lender shall not be entitled to indemnification
under this Section 3.5 with respect to Taxes; provided that, should a Non-U.S. Lender which is
otherwise exempt from or subject to a reduced rate of withholding tax 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.
(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 pursuant to the law
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 wil permit such
payments to be made without withholding 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 countr or any political subdivision thereof asserts a claim that
the Administrative Agent did not properly withold tax 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 Administrtive Agent of a change in circumstances which
rendered its exemption from withholding 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 otherwise, including penalties and interest,
23
and including taxes imposed by any jurisdiction on amounts payable to the Administrative Agent
under this 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 liability pursuant to this
Agreement to the Administrative Agent with respect to such amounts. The obligations of the
Lenders under this Section 3.5(g) shall survive 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 this Section 3.5 shall use reasonable efforts
(consistent with legal and regulatory 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
jurisdiction of its applicable lending offce if the making 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 confidential and (3) would not
subject such Lender or the Administrative Agent to any uneimbursed cost or expense and would
not otherwise 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, occurrng after the date of this Agreement, which
wil entitle such Lender to compensation pursuant to this Section 3.5; provided that (i) if any
Lender fails to give such notice within 180 days after it obtains actual know ledge of such event
(or, in the exercise of ordinary due diligence, should have obtained actual knowledge thereof),
such Lender shall only be entitled to payments under this Section 3.5 for costs incurred from and
after the date 180 days prior to the date that such Lender does give such notice.
3.6. Alternate Lending Installation; Lender Statements; Surival ofIndemnity. To the
extent reasonably possible, each Lender shall designate an alternate Lending Installation with
respect to its Eurodollar Advances to reduce any liability of the Borrower to such Lender under
Sections 3.1, 3.2 and 3.5 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
copy to the Administrative Agent) as to the amount due, if any, under Sections 3.1, 3.2, 3.4 or
3.S. Such written statement shall set forth 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 funded its
Eurodollar Advance through the purchase of a deposit of the type and matuty 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 otherwise provided herein, the amount specified in
the written statement of any Lender shall be payable on demand after receipt by the Borrower of
such written 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 this Agreement.
24
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 fuished 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 officer in its jurisdiction of incorporation.
(ii) Copies, certified by the Secretary or Assistant Secretary 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.
(iii) An incumbency certificate, executed by the Secretary or Assistant
Secretary of the Borrower, which shall identify by name and title and bear the signatues
of the Authorized Officers 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 writing by the Borrower.
(iv) A certificate, signed by an Authorized Officer, certifying the satisfaction
of the condition in Section 4.1(d) below.
(v) One or more wrtten legal opinions ofthe 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 attached hereto as
Exhibit A.
(vi) Signatue pages or counterparts 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.
(viii) Such other documents as any Lender or its counsel may have reasonably
requested.
(b) The Lenders and the Administrtive 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 ) The Lenders and the Administrative Agent shall have received evidence
satisfactory to them that the Existing Credit Agreement shall have been terminated and all
amounts due and payable thereunder shall have been paid in full in cash.
25
(d) No Default or Unmatured Default exists on or as of the Closing Date.
(e) The representations and warranties contained in Aricle 5 shall be tre and
correct on and as of the Closing Date except to the extent any such representation or warranty is
stated to relate solely to an earlier date, in which case such representation or warranty shall have
been true and correct on and as of such earlier date.
(f) All legal matters incident to the making of such Loans shall be satisfactory
to the Lenders and their counseL.
ARTICLES
REPRESENTATIONS AND WARRTIES
The Borrower represents and warrants to the Lenders that:
5.1. Existence and Standing. Each of the Borrower and its Subsidiaries is a
corporation, partership (in the case of Subsidiaries only) or limited liability company duly and
properly incorporated or organized, as the case may be, validly existing and (to the extent such
concept applies to such entity) in good standing under the laws of its jurisdiction of incorporation
or organization and has all requisite authority to conduct its business in each jursdiction 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 has 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 enforceability may be limited by
bankptcy, insolvency or similar laws affecting the enforcement of creditors' rights generally.
5.3. No Conflict; Governent Consent. Neither the execution and delivery by the
Borrower of the Loan Documents, nor the consummation of the transactions therein
contemplated, nor compliance with the provisions thereofwil violate, except to the extent that
such violation, alone or in the aggregate, could not reasonably be expected to have a Material
Adverse Effect, (i) any law, rule, regulation, order, wrt, judgment, injunction, decree or award
binding on the Borrower or any of its Subsidiaries or (ii) the Borrower's or any Subsidiary's
articles or certificate of incorporation, partership agreement, certificate of partership, articles
or certificate of organization, bylaws, or operating or other management agreement, as the case
may be, or (iii) the provisions of any indenture, instrent or agreement to which the Borrower
or any of its Subsidiaries is a part or is subject, or by which it, or its Propert, 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 Propert of the Borrower or a Subsidiary pursuant to the terms of any
such indenture, instrment 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,
26
which has not been obtained by the Borrower or any of its Subsidiaries, 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 performance by
the Borrower of the Obligations or the legality, validity, binding effect or enforceability of any of
the Loan Documents.
5.4. Financial Statements. The December 3l, 2007 consolidated financial statements
of the Borrower and its Subsidiares 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 Subsidiaries 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, Propert, condition (financial or otherwise) or results of operations of the Borrower
and its Subsidiaries which could reasonably be expected to have a Material Adverse Effect,
except as set forth in the SEC Reports.
5.6. Taxes. The Borrower and its Subsidiaries have fied all material United States
federal tax retus and all other tax returns which are required to be fied and have paid all taxes
due pursuant to said returns or pursuant to any assessment received by the Borrower or any of its
Subsidiaries, except such taxes, if any, as are being contested in good faith and as to which
adequate reserves have been provided in accordance with Agrement Accounting Principles. No
tax liens have been fied and no claims are being asserted with respect to any such taxes claimed
to be due and payable that would, if adversely determined, have a Material Adverse Effect. The
charges, accruals and reserves for taxes on the books of the Borrower and its Subsidiaries (to the
extent in excess of $5,000,000) are adequate under Agreement Accounting Principles.
Notwithstanding any provision in this Agreement to the contrary, the only representations and
warranties made by the Borrower with respect to matters relating to taxes shall be the
representations and warranties set forth in this Section S.6, and this Agreement shall not be
interpreted in any manner that is contrary hereto.
5.7. Litigation and Contingent Obligations. Except as set forth in the most recent
consolidated financial statements provided to the Administrative Agent pursuant to Section 5.4
or Section 6.1, respectively, and the SEC Reports, there is no litigation, arbitration,
governental investigation, proceeding or inquiry pending or, to the knowledge of any of their
officers, threatened against or affecting the Borrower or any of its Subsidiaries which could
reasonably be expected to have a 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 liabilities 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, or the SEC Reports.
5.8. Subsidiaries. Schedule S.8 contains an accurate list of all Subsidiaries of the
Borrower as of the Closing Date, setting forth their respective jursdictions of organization and
the percentage of their respective capital stock or other ownership interests owned by the
27
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 Unfunded 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 liability 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 Reportable Event
has occurred 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 ofInformation. No information, exhibit or report fuished by the
Borrower or any of its Subsidiaries 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 Subsidiaries which are subject to any
limitation on sale, pledge, or other restriction hereunder.
5.12. Material Agreements. Except as set forth in Schedule 5.12, neither the Borrower
nor any Subsidiary is a part to any agreement or instrment or subject to any charter or other
corporate restrction (a) which either prohibits or restrcts the ability 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 Subsidiary is in default in the
pedormance, observance or fulfillment of any of the obligations, covenants or conditions
contained in (i) any agreement to which it is a part, which default could reasonably be expected
to have a Material Adverse Effect or (ii) any agreement or instrument 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
government or any instrentality or agency thereof having jurisdiction over the conduct of their
respective businesses or the ownership of their respective Propert 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 Properties. Except as set forth on Schedule S.14, as ofthe Closing
Date, the Borrower and its Subsidiaries wil have good title, free of all Liens other than those
permitted 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 and the SEC
Reports as owned by the Borrower and its Subsidiaries.
28
5.15. Plan Assets; Prohibited Transactions. The Borrower is not an entity deemed to
hold "plan assets" within the meaning of 29 C.F.R. § 2510.3-101 of an employee benefit plan (as
defined in Section 3(3) of ERISA) which is subject to Title I of ERISA or any plan (within the
meaning of Section 4975 of the Code), and neither the execution of this Agreement nor the
making 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. Environmental Matters. In the ordinary course of its business, the Borrower
considers the effect of Environmental Laws on the business of the Borrower and its Subsidiaries,
in the course of which it identifies and evaluates potential risks and liabilities accruing to the
Borrower due to Environmental Laws. On the basis of this consideration, the Borrower has
concluded that the potential risks and liabilities accruing to the Borrower due to Environmental
Laws could not reasonably be expected to have a Material Adverse Effect. Neither the Borrower
nor any Subsidiary has received any notice to the effect that its operations are not in material
compliance with any of the requirements of applicable Environmental Laws or are the subject 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 substace 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) N either the Borrower or any of its Subsidiaries is a Sanctioned Person or
does business in a Sanctioned Countr or with a Sanctioned Person in violation of the economic
sanctions of the United States administered by OF AC.
(b) Each of the Borrower and its Subsidiaries is in compliance in all material
respects with the PATRIOT Act. No part of the proceeds of the Loans hereunder wil be used,
directly or indirectly, for any payments to any governental official or employee, political par,
official of a political part, candidate for political offce, or anyone else acting in an official
capacity, in order to obtain, retain or direct business or obtain any improper advantage, in
violation of the United States Foreign Corrpt Practices Act of 1977, as amended.
ARTICLE 6
COVENANTS
During the term of this Agreement, unless the Required Lenders shall otherwise consent
in writing:
6. I. Financial Reporting. The Borrower wil maintain, for itself and each Subsidiary,
a system of accounting established and administered in accordance with the Agreement
Accounting Principles, and fuish to the Administrative Agent in suffcient copies for each of
. the Lenders:
29
(i) Within one hundred twenty (120) days after the close of each of its fiscal
years (or, if earlier, within thirt (30) days after the Borrower is required to file its
Annual 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 Subsidiaries,
including balance sheets as of the end of such period, related profit and loss and
reconciliation of surplus statements, and a statement of cash flows. Delivery by the
Borrower to the Administrative Agent of copies of the Borrower's Annual Report on
Form 10-K filed with the Securities 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 (15) days after the Borrower is
required to file its Quarterly Report on Form 10-Q for with the Securities and Exchange
Commission for such period), consolidated and consolidating unaudited balance sheets as
at the close of each the first three quarterly periods of each of its fiscal years, for itself
and its Subsidiaries and consolidated and consolidating profit and loss and reconciliation
of surplus statements and a statement of cash flows for the period from the beginning of
such fiscal year to the end of such quarter, all certified by an Authorized Officer.
Delivery by the Borrower to the Administrative Agent of copies of the Borrower's
Quarterly Report on Form i O-Q fied with the Securities and Exchange Commission for
any quarter shall satisfy the Borrower's obligation under this clause (ü) with respect to
such quarer.
(iii) Together with the financial statements required under Sections 6.1(i) and
(ii), (A) a compliance certificate in substantially the form of Exhibit B signed by an
Authorized Officer showing the calculations necessary to determine compliance with this
Agreement and stating 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
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 after the
Borrower knows that any Reportable Event has occured with respect to any Plan, a
statement, signed by an Authorized Officer, describing said Reportable Event and the
action which the Borrower proposes to take 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 Subsidiaries is or may be liable to any Person as a result of the release by the
Borrower, any of its Subsidiaries, or any other Person of any toxic or hazardous waste or
substance into the environment, and (b) any notice alleging any violation of any federal,
30
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 (a) any shareholders of the
Borrower (other than the Parent) or (b) the shareholders of the Parent, copies of all
financial statements and reports so fushed.
(vii) Promptly upon the fiing thereof, copies of all registration statements and
annual, quarterly, monthly or other regular reports which the Borrower or any of its
Subsidiaries fies with the Securities and Exchange Commission.
(viii) Such other information (including nonfinancial information) as the
Administrative Agent or any Lender may from time to time reasonably request.
(ix) Promptly after Moody's or S&P shall have announced a change in the
rating established or deemed to have been established for the Index Debt, written notice of such
rating change.
6.2. Use of Proceeds. The Borrower wil, and wil cause each Subsidiary to, use the
proceeds of the Loans solely to repay the loans and other obligations under the Existing Credit
Agreement.
6.3. Notice of Default. etc. The Borrower wil, and wil cause each Subsidiary to, give
prompt notice in writing to the Lenders of the occurence of (i) any Default or Unmatured
Default 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.
6.4. Conduct of Business. The Borrower wil, and wil cause each Material Subsidiary
to, carr 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 necessary to remain duly
incorporated or organized, validly existing and (to the extent such concept applies to such entity)
in good standing as a domestic corporation, parership or limited liability company in its
jurisdiction of incorporation or organization, 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.
6.5. Taxes. The Borrower wil, and wil cause each Subsidiary to, timely file 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 Propert, 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 Principles.
6.6. Insurance. The Borrower wil, and wil cause each Subsidiary 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
wil fuish to any Lender upon request full information as to the insurance carred.
31
6.7. Compliance with Laws. The Borrower wil, and will cause each Subsidiary to,
comply in all material respects with all laws, rules, regulations, orders, wrts, judgments,
injunctions, decrees or awards to which it may be subject, including all Environmental Laws.
6.8. Maintenance of Properties. The Borrower wil, and wil cause each Subsidiary to,
do all things necessary to maintain, preserve, protect and keep its Propert in good repair,
working order and condition, and make all necessary and proper repairs, renewals and
replacements so that its business carried on in connection therewith may be properly conducted
at all times.
6.9. Inspection. The Borrower wil, and will cause each Subsidiary 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 Subsidiary, to
examine and make copies of the books of accounts and other financial records of the Borrower
and each Subsidiary, and to discuss the affairs, finances and accounts of the Borrower and each
Subsidiary with, and to be advised as to the same by, their respective officers 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 written consent of the Required
Lenders (such consent not to be unreasonably withheld), the Borrower wil not, nor wil it permit
any Material Subsidiary to, merge or consolidate with or into any other Person, or sell or
otherwise dispose of all or substantially all of its Propert to another Person except that (i) a
Material Subsidiary may merge into the Borrower or a Wholly-Owned Subsidiary, (ii) a Material
Subsidiary may dispose of all or substantially all of its Propert to the Borrower or a Wholly-
Owned Subsidiary, or (iii) the Borrower or any Subsidiar may sell, transfer, contrbute, convey
or dispose of accounts, general intangibles and/or chattel paper (each as defined in Article 9 of
the Uniform Commercial Code) and associated collateral, lockbox and other collection accounts,
records and/or proceeds in connection with a Permitted Receivables Securtization.
6.11. Liens. The Borrower wil not, nor wil it permit any Material Subsidiary to,
create, incur, or suffer to exist any Lien in, of or on the Propert of the Borrower or any Material
Subsidiary, except:
(i) Liens for taxes, assessments or governental charges or levies on its
Propert if the same shall not at the time be delinquent or thereafter can be paid without
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 carriers', warehousemen's and mechanics'
liens and other similar liens arising in the ordinary 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;
32
(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) Utility 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 Subsidiaries;
(v) Liens existing on the date hereof and described in Schedule 5.14;
(vi) Liens on Propert of the Borrower or any of its Material Subsidiaries
created solely for the purpose of securng Indebtedness incured to fund the purchase
price of Propert, provided that no such Lien shall extend to or cover any other Propert
of the Borrower or its Material Subsidiaries other than the Propert 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 instruments under which propert 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 propert or asset prior to the Acquisition thereof
by the Borrower or any Material Subsidiar provided that the Acquisition is permitted
under Section 6.l3and such Lien is not created in contemplation of or in connection with
such Acquisition;
(ix) Liens arising under a Permitted Receivables Securitization;
(x) Liens arising by operation oflaw with respect to any deposit, securities
and commodity account; provided that (a) the right of the Borrower or the applicable
Material Subsidiary to withdraw assets from such account shall not be restricted other
than by customary 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 Subsidiary to provide collateral to the applicable depository
institution, securities intermediar or commodities intermediary;
(xi) Liens in favor of the Administrative Agent hereunder;
(xii) Any Lien arising out of the refinancing, extension, or renewal of any
Indebtedness secured by any Lien permitted by clause (v) ofthis Section 6.11; provided
that such Indebtedness is not increased and is not secured by any additional assets; and
(xiii) (A) Liens incurred by the Borrower or the Parent in connection with Rate
Management Transactions entered into by either the Borrower or the Parent in the
ordinary 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
33
the ordinary course of business, provided that the aggregate principal amount of the
Indebtedness secured by the Liens permitted under this clause (xüi) shall not exceed
$50,000,000 at anyone time outstanding.
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 1.0.
6.13. Investments and Acquisitions. Without the prior written consent of the Required
Lenders (such consent not to be unreasonably withheld), the Borrower wil not, nor will it permit
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 Subsidiary or to
become or remain a parter in any partership 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 Subsidiary, 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 trst controlled, directly or
indirectly, by the Borrower to the extent such business trst purchases securties ofthe
Borrower;
(iv) In addition to Investments otherwise permitted hereunder, Investments and
Acquisitions related to the energy busjness of the Borrower and its Subsidiaries made
after the date hereof in an aggregate amount not exceeding $750,000,000 at anyone time
outstanding; and
(v) Investments by the Borrower or a Subsidiary in connection with a
Permitted Receivables Securitization.
6. 14. Subsidiary Dividend Restrctions. The Borrower wil not, nor wil it permit any
Material Subsidiary to, become a part to any agreement prohibiting or restrcting the ability of
such Material Subsidiary to declare or pay dividends to the Borrower, except as disclosed in
Schedule 5.12, other than prohibitions or restrctions in connection with a Permitted Receivables
Securitization.
6.15. Affiliates. The Borrower wil not, and will not permit any Subsidiary to, enter
into any transaction (including the purchase or sale of any Propert or service) with, or make any
payment or transfer to, any Affiliate that is not a Subsidiary except in the ordinary course of
business and pursuant to the reasonable requirements of the Borrower's or such Subsidiary's
business and upon fair and reasonable terms no less favorable to the Borrower or such Subsidiary
than the Borrower or such Subsidiary would obtain in a comparable arms-length transaction;
34
provided, that for the avoidance of doubt, nothing contained in this Section 6.15 shall prohibit
the Borrower from paying dividends to the Parent.
6.16. OFAC, PATRIOT Act Compliance. The Borrower will, and will cause each of its
Subsidiariesto, (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 OF AC, 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 pricipal 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 arising 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 arising under Section 7( e), twenty (20)
days shall have elapsed after an Authorized Offcer 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 this 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 written notice from the Administrative
Agent or any Lender.
(e) The breach by the Borrower (other than a breach which constitutes a
Default under another Section of this Article 7) of any of the terms or provisions of this
Agreement which is not remedied within twenty (20) days after written notice from the
Administrative Agent or any Lender.
(t) Failure of the Borrower or any of its Subsidiaries 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
35
of such Material Indebtedness to cause, such Material Indebtedness to become due prior to its
stated matuity; or any Material Indebtedness of the Borrower or any of its Subsidiaries 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 maturity thereof; or the Borrower or any of its
Subsidiaries shall not pay, or admit in writing its inability to pay, its debts generally as they
become due.
(g) The Borrower or any of its Material Subsidiaries shall (i) have an order for
relief entered with respect to it under the Federal bankptcy laws as now or hereafter in effect,
(ii) make an assignment 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 official for it
or any Substantial Portion of its Propert, (iv) institute any proceeding seeking an order for relief
under the Federal bankptcy laws as now or hereafter in effect or seeking to adjudicate it a
bankpt or insolvent, or seeking dissolution, winding up, liquidation, reorganization,
arrangement, adjustment or composition of it or its debts under any law relating to bankptcy,
insolvency or reorganization or relief of debtors or fail to fie an answer or other pleading
denying the material allegations of any such proceeding filed against it, (v) take any corporate or
partership 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
Subsidiaries, a receiver, trstee, examiner, liquidator or similar official shall be appointed for the
Borrower or any of its Material Subsidiaries 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 Subsidiaries and such appointment continues undischarged or such proceeding
continues undismissed or unstayed for a period of sixty (60) consecutive days.
(i) Any court, government or governental agency shall condemn, seize or
otherwise appropriate, or take custody or control of (each, a "Condemnation"), all or any portion
of the Propert of the Borrower and its Subsidiaries which, when taken together with all other
Propert of the Borrower and its Subsidiaries so condemned, seized, appropriated, or taken
custody or control of, durng the twelve-month period ending with the month in which any such
action occurs, constitutes a Substantial Portion; provided that the term "Condemnation" shall not
include any voluntary 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.
(j) The Borrower or any of its Subsidiaries shall fail within thirt (30) days to
pay, bond or otherwise discharge one or more (i) judgments or orders for the payment of money
in excess of $25,000,000 (or the equivalent thereof in currencies other than U.S. Dollars) in the
aggregate, or (ii) nonmonetary 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 otherwise being appropriately contested in good faith.
(k) The Unfunded 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 incured withdrawal liability to such Multiemployer Plan in
36
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 liability
(determined as of the date of such notification), exceeds $25,000,000.
(1) The Borrower or any of its Subsidiaries shall (i) be the subject of any
proceeding or investigation pertaining to the release by the Borrower, any of its Subsidiaries or
any other Person of any toxic or hazardous waste or substance into the environment, or (ii)
violate any Environmental 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) If any 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 part 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 terminate
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, within 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
Administrative Agent shall, by notice to the Borrower, rescind and annul 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 writing 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
37
waive the applicability 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 maturity thereof;
(ii) unless agreed to by all ofthe Lenders, (A) modify the definition of the
term "Required Lenders", or (B) change or waive any provision of Section 1 1.2, any
other provision of this 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 affect the rights or duties of the Administrative Agent
hereunder without the prior written consent of the Administrative Agent.
8.3. Preservation of Rights. No delay or omission ofthe Lenders or the
Administrative Agent to exercise any right under the Loan Documents shall impair such right or
be construed to be a waiver of any Default or an acquiescence therein, and the making of any
Loans notwithstanding the existence of a Default or the inability of the Borrower to satisfy the
conditions precedent to such Loans shall not constitute any waiver or acquiescence. Any single
or partial exercise of any such right shall not preclude other or fuher exercise thereof or the
exercise of any other right, and no waiver, amendment or other variation of the terms, conditions
or provisions of the Loan Documents whatsoever shall be valid unless in writing signed by the
Lenders required pursuant to Section 8.2, and then only to the extent specifically set forth in
such wrting. All remedies contained in the Loan Documents or by law afforded 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.l. Survival of Representations. All representations and warranties of the Borrower
contained in this Agreement shall survive the making of the Loans herein contemplated.
9.2. Governental Regulation. Anything contained in this Agreement to the contrary
notwithstanding, 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.
9.4. 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 understandings among the Borrower, the Administrative Agent and the
Lenders relating to the subject matter thereof.
38
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 parter 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 constred so as to
confer any right or benefit'upon any Person other than the paries to this Agreement and any
Person indemnified under Section 9.6 or any other provision of this Agreement, and their
respective successors and assigns, provided that the parties hereto expressly agree that the
Arranger shall enjoy the benefits of the provisions of Sections 9.6, 9.10 and 10.11 to the extent
specifically set forth 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 part to this Agreement.
9.6. Expenses; Indemnification.
(a) The Borrower shall reimburse the Administrative Agent and the Aranger
for any reasonable costs, internal charges and out-of-pocket expenses (including reasonable
attorneys' fees and time charges of attorneys for the Administrtive Agent, which attorneys may
be employees of the Administrative Agent) paid or incurred by the Administrative Agent or the
Arranger 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 Administrative Agent, the
Arranger 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 Arranger or a Lender) paid or incurred 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
incurred 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") pertaining 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.
(b) The Borrower hereby fuher agrees to indemnify the Administrative
Agent, the Arranger, each Lender, their respective Affiliates, and each of their parters,
directors, offcers, 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 prepartion therefor whether or not such Indemnitee is a
party thereto) which any of them may payor incur arising 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 court of competent jurisdiction
to have resulted from the gross negligence or wilful misconduct of the part seeking
indemnification.
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(c) The obligations of the Borrower under this Section 9.6 shall survive the
termination of this Agreement.
9.7. Numbers of Documents. All statements, notices, closing documents, and requests
hereunder shall be furnished to the Administrative Agent with sufficient counterparts so that the
Administrative Agent may furnish 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. Severability 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 affecting the remaining provisions in that
jurisdiction or the operation, enforceability, or validity ofthat 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
fiduciary responsibilities to the Borrower. None ofthe Administrative Agent, the Aranger or
any Lender undertakes any responsibility to the Borrower to review or inform the Borrower of
any matter in connection with any phase ofthe Borrower's business or operations. The
Borrower agrees that no Indemnitee shall have liability to the Borrower (whether sounding in
tort, contract or otherwise) for losses suffered by the Borrower in connection with, arising 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 jurisdiction that such
losses resulted from the gross negligence or wilful misconduct of the part from which recovery
is sought. No Indemnitee shall have any liability 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, arising out of, or in any way related to the
Loan Documents or the transactions contemplated thereby, and (ii) any damages arising from the
use by unintended recipients of any information or other materials distrbuted by it through
telecommunications, electronic or other information transmission systems in connection with this
Agreement or the other Loan Documents or the transactions contemplated hereby or thereby.
The provisions of this Section 9.10 shall surive the termination of this Agreement.
9.IL. Confidentiality. Each Lender agrees to hold any confidential information which it
may receive from the Borrower pursuant to this Agreement in confidence, except for disclosure
(i) to its Affliates, directors, offcers, employees and agents and to other Lenders and their
respective Affiliates, directors, offcers, employees and agents (ii) to legal counsel, accountants,
and other professional advisors to such Lender or to a Transferee, (iii) to regulatory officials
having jursdiction over such Lender or any of its Affiliates, (iv) as required by law, regulation,
or legal process, (v) as required in connection with any legal proceeding to which such Lender is
a part, (vi) to such Lender's actual or prospective direct or indirect contractual counterpartes in
Rate Management Transactions or to legal counsel, accountants and other professional advisors
40
to such counterparties, (vii) permitted by Section 12.4, (viii) in connection with the exercise of
rights or remedies hereunder or any action or proceeding relating to this agreement and (ix) to
the extent, and in the manner, 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 wil
be informed of the confidential nature of such information and instrcted to keep such
information confidentiaL. In the case of any requested disclosure pursuant to clause (iv) or (v)
above, the applicable Lender wil give prompt notice of the request to the Borrower (unless
prohibited by the terms of the applicable law, regulation, subpoena or other legal process or
proceeding) so that the Borrower may endeavor to obtain 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 Affliates from time to time may hold investments in, make other loans to or
have other relationships with the Borrower and its Affiliates.
9.14. PATRIOT Act Notice. Each Lender that is subject to the PATRIOT 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 PATRIOT Act, it is required to obtain, verify and record
information that identifies the Borrower, which information includes the name and address of the
Borrower and other information that wil allow such Lender or the Administrative Agent, as
applicable, to identify the Borrower in accordance with the PATRIOT Act.
9. 15. Counterparts. This Agreement may be executed in any number of counterparts,
all of which taken together shall constitute one agreement, and any of the parties hereto may
execute this Agreement by signing any such counterpart. This Agreement shall be effective
when it has been executed by the Borrower, the Administrative Agent and the Lenders as of the
Closing Date and each part 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.
ARTICLE 10
THE ADMINISTRATIVE AGENT
10.1. Appointment; Nature 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 forth herein and in the other Loan Documents. The Administrative
Agent agrees to act as such contractul representative upon the express conditions contained in
this Article 10. Notwithstanding the use ofthe defined term "Administrative Agent," it is
expressly understood and agreed that the Administrative Agent shall not have any fiduciary
41
responsibilities to any Lender by reason of this Agreement or any other Loan Document and that
the Administrative Agent is merely acting as the contractual representative of the Lenders with
only those duties as are expressly set forth in this Agreement and the other Loan Documents. In
its capacity as the Lenders' contractual representative, the Administrative Agent (i) does not
hereby assume any fiduciary duties to any of the Lenders, (ii) is a "representative" of the Lenders
within the meaning of Section 9-105 ofthe 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 liability for
breach of fiduciary 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 taken 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 court of competent jursdiction to have arisen from the
gross negligence or wilful misconduct of such Person.
10.4. No Responsibility for Loans, Recitals, 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 veritY (a) any statement, warranty 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 fuish 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 Administrative Agent; (d) the existence or possible existence of any
Default or Unmatued Default; (e) the validity, enforceability, effectiveness, suffciency or
genuineness of any Loan Document or any other instrument or writing furnished in connection
therewith; (f) the value, suffciency, creation, perfection 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 information that is not required to be
furnished by the Borrower to the Administrative Agent at such time, but is voluntarily 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 written instrctions signed by the Required Lenders (or all of the
42
Lenders in the event that and to the extent that this Agreement expressly requires such), and such
instructions and any action taken 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 discretionary 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 writing 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 Administrtive Agent shall be fully justified in failing 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 against any and all liability, cost and
expense that it may incur by reason of taking or continuing to take any such action.
10.6 Employment of Administrative Agents and CounseL. The Administrative Agent
may execute any of its duties as Administrative Agent hereunder and under any other Loan
Document by or through directors, officers, 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 Administrtive Agent shall be entitled to advice of counsel
concerning the contractual arrangement between the Administrative Agent and the Lenders and
all matters pertaining to the Administrtive 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, certificate, affidavit, 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 accountants and other experts selected by it, and shall not
be liable for any action taken or not taen by it in accordance with the advice of any such
counsel, accountants or experts.
10.8. Administrative Agent's Reimbursement and Indemnification. 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,
(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 Loan
Documents (including for any expenses incurred 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 liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind and natue whatsoever which may be
imposed on, incured by or asserted against the Administrative Agent in any way relating to or
arising out of the Loan Documents or any other document delivered in connection therewith or
the transactions contemplated thereby (including for any such amounts incurred by or asserted
against 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
43
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 jurisdiction to have resulted from the gross
negligence or wilful misconduct of the Administrative Agent and (y) any indemnification
required pursuant to Section 3.5(g) shall, notwithstanding 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 survive 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 Unmatured Default hereunder unless the
Administrative Agent has received written 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, unless the context otherwise indicates,
include the Administrative Agent in its individual capacity. The Administrative Agent and its
Affiliates may accept deposits from, lend money to, and generally engage in any kind of trst,
debt, equity or other transaction, in addition to those contemplated by this Agreement or any
other Loan Document, with the Borrower or any of its Subsidiaries in which the Borrower or
such Subsidiary 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 Administrative 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 this
Agreement and the other Loan Documents. Each Lender also acknowledges that it wil,
independently and without reliance upon the Administrative Agent, the Aranger or any other
Lender and based on such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under this Agreement and
the other Loan Documents.
10.12. Successor Administrative Agent. The Administrative Agent may resign at any
time by giving written 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, forty-five (45) days after 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 thirt (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
44
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 bank as a successor
Administrative Agent hereunder. If the Administrative Agent has resigned and no successor
Administrative Agent has been appointed, the Lenders may pedorm all the duties of the
Administrative 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 Administrtive 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 bank having capital and retained earnings of at least
$ i 00,000,000. 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 resigning
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 Article 10 shall continue in effect for the benefit of such
Administrative Agent in respect of any actions taken or omitted to be taken 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 Affiliate pursuant to this Section 10.12, then the term
"Prime Rate" as used in this 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 Arnger, 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 Affiiates. The Borrower and the Lenders agree that the
Administrative Agent may delegate any of its duties under this Agreement to any of its
Affliates. Any such Affliate (and such Affiiate's directors, offcers, agents and employees)
which performs duties in connection with this Agreement shall be entitled to the same benefits of
the indemnification, waiver and other protective provisions to which the Administrative Agent is
entitled under Article 9 and Article 10.
10.15. Other Agents. No Lender now or hereafter identified on the cover page, the
signature pages or otherwise in this Agreement, or in any document related hereto, as being the
"Syndication Agent" or a "Documentation Agent" shall have any right, power, obligation,
liability, responsibility 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 taking or refraining from taking any
action hereunder or pursuant hereto.
45
ARTICLE 11
SETOFF; RATABLE PAYMENTS
11.1. 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 Affiliates 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 part thereof, shall then be
due. Each Lender agrees to notify the Borrower and the Administrative Agent in writing
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 otherwise, 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 Outstanding Credit Exposure. If any Lender, whether in
connection with setoff or amounts which might be subject to setoff or otherwise, 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 necessary such that all Lenders
share in the benefits of such collateral ratably in proportion to their respective Pro Rata Share of
the Aggregate Outstanding Credit Exposure. In case any such payment is disturbed by legal
process, or otherwise, appropriate further adjustments 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. i. Successors and Assigns. The terms 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 written consent of each Lender, (ii) any
assignent by any Lender must be made in compliance with Section 12.3 and (iii) any
participation by any Lender must be made in compliance with Section 12.2. The parties to this
Agreement acknowledge that clause (ii) of the foregoing sentence relates only to absolute
assignents and does not prohibit assignments creating securty interests, including (x) any
pledge or assignment by any Lender of all or any portion of its rights under this Agreement and
any Note to a Federal Reserve Bank or (y) in the case of a Lender which is a fund, any pledge or
assignment 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 such pledge or assignent creating a
46
security interest shall release the transferor Lender from its obligations hereunder unless and
until the parties 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. Participations.
(a) Permitted Participants; Effect. Any Lender may, in the ordinary course of
its business and in accordance with applicable law, at any time sell to one or more banks or other
entities ("Participants") 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
participating interests to a Participant, such Lender's obligations under the Loan Documents
shall remain unchanged, such Lender shall remain solely responsible to the other parties hereto
for the pedormance 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 this Agreement shall be
determined as if such Lender had not sold such participating 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 Participant 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 Facility 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.
(c) Benefit of Setoff. The Borrower agrees that each Participant shall be
deemed to have the right of setoff provided in Section 11.1 in respect of its participating interest
in amounts owing under the Loan Documents to the same extent as if the. amount of its
participating 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 participating interests sold to each Participant. The Lenders agree to share with each
Participant, 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
47
setoff, such amounts to be shared in accordance with Section 11.2 as if each Participant were a
Lender.
12.3. Assignents.
(a) Permitted Assignments. Any Lender may, in the ordinary course of its
business and in accordance with applicable law, at any time assign to one or more banks or other
entities ("Purchasers") all or any part of its rights and obligations under the Loan Documents.
Such assignment shall be substantially in the form of Exhibit C or in such other form as may be
agreed to by the parties 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 Affiliate thereof or an Approved 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
unreasonably withheld 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) $10,000,000 or (ii) the remaining amount
of the assigning Lender's Commitment (calculated as atthe 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 assignment (unless such fee is
waived by the Administrative Agent in its sole discretion), such assignment shall become
effective on the effective date specified in such assignent. The assignment shall contain a
representation by the Purchaser to the effect that none of the consideration used to make the
purchase of the Commitment and Outstanding Credit Exposure under the applicable assignment
agreement constitutes "plan assets" as defined under ERISA and that the rights and interests of
the Purchaser in and under the Loan Documents wil not be "plan assets" under ERISA. On and
after the effective date of such assignment, such Purchaser shall for all puroses be a Lender
part 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 part hereto, and no fuher 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 survive payment of the Obligations and termination of the Loan
Documents. Upon the consummation of any assignent to a Purchaser pursuant to this
Section 12.3(a), the transferor Lender, the Administrative Agent and the Borrower shall, if the
transferor Lender or the Puchaser desires that its Loans be evidenced by Notes, make
appropriate arrangements 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.
48
(c) Register. The Administrtive Agent, acting solely for this purpose 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 Outstanding Credit Exposure owing to,
each Lender pursuant to the terms hereof from time to time (the "Register"). The entres 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 purposes of this Agreement, notwithstanding notice to the contrary. 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 ofInformation. The Borrower authorizes each Lender to disclose
to any Participant 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 creditworthiness of the Borrower and its
Subsidiaries, including any information contained in any Reports; provided that each Transferee
and prospective Transferee agrees to be bound by Section 9.11 ofthis Agreement.
12.5. Tax Treatment. If any interest in any Loan Document is transferred to any
Transferee, which is organized under the laws of any jurisdiction other than the United States or
any State thereof, the transferor Lender shall cause such Transferee, concurrently with the
effectiveness of such transfer, to comply with the provisions of Sections 3.S(d) and 3.S(e) and
such Transferee shall not be entitled to any additional payments under Section 3.5, (i) unless,
and only to the extent, that the trsferor Lender was entitled to amounts under Section 3.S, or
(ii) in the event that payments to the Transferee were not subject to any withholding at the time
of transfer and became subject to withholding as a result ofa Change In Law.
ARTICLE 13
NOTICES
13.1. Notices.
(a) Except as otherwise permitted by Section 2.13 with respect to borrowing
notices, all notices, requests and other communications to any part hereunder shall be in writing
(including electronic transmission, facsimile transmission or similar wrting) and shall be given
to such part: (x) in the case of the Borrower 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 part, at
such other address or facsimile number as such part 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 this Section and
confirmation of receipt is received, (ii) if given by mail, 72 hours after such communication is
deposited in the mails with first class postage prepaid, addressed as aforesaid, or (iii) if given by
any other means, when delivered at the address specified in this Section; provided that notices to
the Administrative Agent under Artcle 2 shall not be effective until received. Notices delivered
49
through electronic communications to the extent provided in subsection (b) below, shall be
effective as provided in such subsection (b).
(b) Notices and other communications to the Lenders hereunder may be
delivered or furnished by electronic communication (including e-mail and internet or intranet
websites) pursuant to procedures approved by the Administrative Agent or as otherwise
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 otherwise determines, provided that such determination or approval may
be limited to particular 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 "return receipt requested" function, as available, return e-mail or other written
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 identifying 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 writing to the other
parties hereto.
ARTICLE 14
CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIL
14.1. CHOICE OF LAW. THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS SHALL (EXCEPT AS MAY BE 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 OBLIGATIONS LAW, BUT EXCLUDING ALL
OTHER CHOICE OF LAW AND CONFLICTS OF LAW RULES).
l4.2. CONSENT TO JURISDICTION. THE BORROWER HEREBY
IRRVOCABLY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS
OF THE STATE OF NEW YORK SITTING 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 MAY BE HEARD AND DETERMINED IN ANY
50
SUCH COURT AND IRRVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR
HEREAFTER HAVE AS TO THE VENUE OF AN SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN
INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT THE RIGHT OF THE
ADMINISTRATIVE AGENT OR ANY LENDER TO BRIG PROCEEDINGS AGAINST
THE BORROWER IN THE COURTS OF ANY OTHER mRISDICTION. ANY mDICIAL
PROCEEDING BY THE BORROWER AGAINST THE ADMINISTRATIVE AGENT OR
ANY LENDER OR ANY AFFILIATE OF THE ADMINISTRATIVE AGENT OR ANY
LENDER INOL VING, DIRECTLY OR INDIRECTLY, ANY MATTER 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 mRY TRIAL. THE BORROWER, THE ADMINISTRATIVE
AGENT AND EACH LENDER HEREBY WAIVE TRIAL BY mRY IN ANY mDICIAL
PROCEEDING INOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER
SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF,
RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT OR THE
RELATIONSHIP ESTABLISHED THEREUNDER.
lSIGNA TUS FOLLOW 1
51
IN WITNSS WHREOF, the Borrwer, the Lenders and the Administative Agent have
execute this Agreement as of the date first above. writtn.
IDAHO POWER COMPAN, as the BorrowerBY:~~~
Name: Dareîion
Title: Sr. Vice President - Administrative Services
and CluefFinacial Officer
Idao Power Company Term Loan Credt Agreement
JPMORGAN CHASE BANK, N.A., as
Admsttive Agent and as a Lender
By. . a.~ .Jlir;U ,N~e: JrNl~ ñ~eiAUTitle: k~ìt)k.
Idaho Power Company Tenn Loan Credit Agreement
BAN OF AMCA, N.A.. as a Lender
By:
Name: J
Title:
~--
Idaho Powe Company Ter Loan crdit Agrmen
UNONB
By:
Name:
Title:
Idaho Power Company Term Loan Creit Agreement
WACHClVlA BANK, NATIONALASSOt Len
By: J
Name: HliNi(Y ït BIEDRZYCKI
Title: DlRECl'Ol( -
Idaho Power Company Ter. Loan Crdit AQrement
SCHEDULE I
COMMITMENTS
JPMorgan Chase Bank, N.A.
Bank of America, N.A.
Union Bank, N.A.
Wachovia Bank, National Association
TOTAL
$ 42,500,000
$ 42,500,000
$ 42,500,000
$ 42,500,000
$170,000,000
I-i
SCHEDULE 5.8
" SUBSIDIARIES AND OTHER INVESTMENTS
(As of December 31, 2008)
Investment In Jurisdiction of Owned By
Organization
Amount of
Investment
Idaho Energy Resources Co. Wyoming Idaho Power Company $60,058,187.38
Schedule 5.8
Percent
Ownership
100%
SCHEDULE S.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 Bank Trust Company Americas (formerly
Bankers Trust Company) and R.G. Page (Stanley Burg, successor individual trstee), as Trustee,
as supplemented and amended.
Propert 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 31,2008 was $1.231 bilion. The amount of First
Mortgage Bonds issuable by Borrower is limited to a maximum of $ 1.5 bilion, but subject to
increase. at any time and may be further limited by propert, earnings 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: 208-388-2600
Fax: 208-388-2879
Email: skeen~idahopower.com
Address for notices as Administrative Agent:
JPMorgan Chase Bank, N.A.
10 South Dearborn St., Floor 07
Chicago, Ilinois 60603
Attention: Walter Jones
Telephone: 312-732-5078
Fax: 312-385-7096
Email: walter.h.jones~chase.com
Address for notices for Credit Contact:
JPMorgan Chase Bank, N.A.
10 South Dearborn St., Floor 09
Chicago, Ilinois 60603
Attention: Jennifer Fitzgerald
Telephone: 312-732-1754
Fax: 312-732-1762
Email: jennifer.e.fitzgerald~jpmorgan.com
Schedule 13.i
EXHIBIT A
FORMS OF OPINIONS
Attached.
CHI 4558348v.2
EXHIBITB
FORM OF COMPLIACE CERTIFICATE
To: The Lenders Parties to the
Credit Agreement Described Below.
This Compliance Certificate is fuished puruant to that certain Term Loan Credit
Agreement dated as of Februar 4, 2009 (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 attached schedule) have the
meanings ascribed thereto in the Credit Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
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 durng the accounting period covered by the attached
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 Unmatued
Default during or at the end of the accounting period covered by the attached financial
statements or as of the 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 natue
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 Schedule I
hereto and the financial statements delivered with this Compliance Certificate in support hereof,
are made and delivered this day of
IDAHO POWER COMPANY
By:
Name:
Title:
SCHEDULE I
TO COMPLIANCE CERTIFICATE
LEVERAGE RATIO
as of ,-
(Section 6.12 of the Credit Agreement)
(1)Consolidated Indebtedness 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 customar 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 such
Person $
(d)Obligations which are evidenced by notes,
acceptances, or other instrments $
(e)Obligations of such Person to purchase
securties or other Propert arsing out of
or in connection with the sale of the same
or substantially similar securties or
Propert $
(f)Capitalized Lease Obligations $
(g)Contingent Obligations $
(h)Obligations in respect of Letters of Credit $
(i)Rate Management Obligations $
1 The aggregate outstanding Indebtedness evidenced by Hybrid Securties shall be excluded to the extent that the
total book value of such Hybrid Securties does not exceed 15% of Consolidated Total Capitalization as of such
time.
(j)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 liability on
the consolidated balance sheet of such
Person $
(m)Amounts outstanding under a Permitted
Receivables Securitization $
(n)Total Consolidated Indebtedness
Add Lines 1 (a) through 1 (m)$
(2)Consolidated Total Capitalization:
(a)Consolidated Indebtedness (from Line
l(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 l(n) by Line 2(d)
(4)Maximum Leverage Ratio permitted by Section
6.12 of the Credit Agreement 0.65 : 1.0
EXHIBITC
FORM OF ASSIGNMENT AGREEMENT
This Assignment Agreement (this "Assignent Agreement") between
(the "Assignor") and (the "Assignee") is dated as
of , _' The parties hereto agree as follows:
1. PRELIMINARY STATEMENT. The Assignor is a part 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 attached hereto. Capitalized terms used herein and not
otherwise defined herein shall have the meanings attbuted 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 assignent the Assignee shall have purchased
pursuant to this Assignent 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 of this 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 Assignent
Agreement, together with any consents required under the Credit Agreement, are delivered to the
Administrative Agent. In no event wil the Effective Date occur if the payments required to be
made by the Assignee to the Assignor on the Effective Date are not made on the proposed
Effective Date.
4. PAYMENT 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 Outstanding 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 part hereto receives
any payment to which the other part hereto is entitled under this Assignent Agreement, then
the par 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
Assignment 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 warants 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
Assignment 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 officers, directors, employees, agents or attorneys shall be responsible for
(i) the due execution, legality, validity, enforceability, genuineness, sufficiency or collectability
of any Loan Document, including documents granting the Assignor and the other Lenders a
securty interest in assets of the Borrower or any guarantor, (ii) any representation, warranty or
statement made in or in connection with any of the Loan Documents, (iii) 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 of the property,
books or records of the Borrower, (vi) the validity, enforceability, perfection, priority, condition,
value or sufficiency of any collateral securng or purorting 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 UNDERTAKINGS 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
taking or not taking action under the Loan Documents, (iii) appoints and authorizes the
Administrative Agent to take 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
will 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
instrctions and notice instrctions are as set forth 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 ERISA,
(viii) agrees to indemnify and hold the Assignor harmless against all losses, costs and expenses
(including reasonable attorneys' fees) and liabilities incured 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 of the United States certifying that the Assignee is entitled to receive payments
under the Loan Documents without deduction or withholding of any United States federal
income taxes.
8. GOVERNING LAW. This Assignment Agreement shall be governed by the
internal law, and not the law of conflicts, of the State of New York.
9. NOTICES. Notices shall be given under this Assignment Agreement in the
manner set forth in the Credit Agreement. For the purose hereof, the addresses of the parties
hereto (until notice of a change is delivered) shall be the addresses set fort in the attachment to
Schedule 1.
10. COUNTERPARTS; DELIVERY BY FACSIMILE. This Assignent Agreement
may be executed in counterparts. Transmission by facsimile or e-mail of an executed
counterpart of this Assignment Agreement shall be deemed to constitute due and sufficient
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 officers of the parties hereto have
executed this Assignent Agreement by executing Schedule 1 hereto as of the date first above
written.
SCHEDULE 1
to Assignment Agreement
1. Description and Date of Credit Agreement: Term Loan Credit Agreement dated as of February 4,
2009 among Idaho Power Company, the Lenders par thereto and JPMorgan Chase Bank, N.A.,
as Administrative Agent.
2. Date of Assignment Agreement:
3.Assignee's Commitment (or
Outstanding Credit Exposure with
respect to terminated
Commtments) purchased
hereunder:$
4.Proposed Effective Date:
5.Non-standard Recordation Fee N/A*
Arrangement
!Assignorl Assignee
to pay 100% of feel
!Fee waived by Administrative Agentl
Accepted and Agreed:
INAME OF ASSIGNORI INAME OF ASSIGNEEI
By:
Title:
By:
Title:
ACCEPTED AND CONSENTED TO BY
!NAME OF BORROWERI **
ACCEPTED AND CONSENTED TO BY
!NAM OF ADMINISTRATIVE AGENTI **
By:
Title:
By:
Title:
*
**
If fee is split 50-50, pick NI A as option
Delete if not required by Credit Agreement
Attachment to SCHEDULE 1 to ASSIGNMENT AGREEMENT
ADMINISTRATIVE INFORMTION SHEET
Attach Assignor's Administrative Information Sheet, which must
include notice addresses for the Assignor and the Assignee
(Sample form shown below)
ASSIGNOR INFORMTION
Contact:
Name:
Fax No.:
Payment Information:
Name & ABA # of Destination Bank:
Account Name & Number for Wire Transfer:
Other Instrctions:
Telephone No.:
Telex No.:
Answerback:
Address for Notices for Assignor:
ASSIGNEE INFORMTION
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 BANK, N.A. INFORMATION
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: 9008 i 09962C0426
Account Name: Idaho Power Company
Attention: Walter H. Jones
Telephone: (312) 732-5078
Telecopy: (3l2) 385-7096
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: ILI-0090
Attention: Jennifer Fitzgerald
Telephone: (312) 732-1754
Telecopy: (312) 385-1762
EXHIBITD
!Reservedl
J.:
EXHIBITE
FORM OF NOTE
$,2009
FOR VALUE RECEIVED, IDAHO POWER COMPANY, an Idaho corporation (the
"Borrower"), hereby promises to pay to the order of (the
"Lender"), at the offices of JPMorgan Chase Bank, N.A. (the "Administrative Agent") located at
10 S. Dearborn St., Chicago, IL 60603 (or at such other place or places as the Administrative
Agent may designate), at the times and in the manner provided in the Term Loan Credit
Agreement, dated as of February 4,2009 (as amended, modified, restated or supplemented from
time to time, the "Credit Agreement"), among the Borrower, the Lenders from time to time
parties thereto, and JPMorgan Chase Bank, N.A., as Administrative Agent, the principal sum of
DOLLARS ($ ), or such lesser amount as may constitute the
unpaid principal amount of the Loan made by the Lender, under the terms and conditions of the
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
ofthis 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 part 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, matuty, 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 matuty, 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 constred in accordance with the internal laws of the
State of New York (including Sections 5-l401 and 5-1402 ofthe New York General Obligations
Law, but excluding all other choice oflaw and conflcts oflaw rules). The Borrower hereby
submits to the nonexclusive jursdiction and venue of the federal and state cours located in New
York, New York, although the Lender shall not be limited to bringing an action in such courts.
d
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:
3