20031014Credit Agreement.pdf

RICEIYID BilLID, n
?8$3SCT t! PH l42t
4/hPaclFrcoRP ,n,ti?ii$ffi'f'on
825 N.E. Multnomah
Portland, Oregon 97232(s\il 8L3-s000
/{r?727
October 13,2003MClFlC FOWER I'TATTFOWER
Idatro Public Utility Commission
Statehouse
472 W est Washington Steet
Boise,ID 83720
ATTN: Ms. Teni Carlock
Re: CaseNos. PAC-S:98-1,
PAC-E-00-2,and
PAC-E-02.2:
c.-J-
Frank Burkhartsmeyer
Enclosure
PA d-['o 3- l
In the Matter of the Application of
PACIFICORP for authority to (l) issue
its promissory notes to and borrow from
commercial banks for (a) not more
ttmn $1.5 billion under revolving
credit agreements, and (b) not more
than $1.5 billion under other bonowing
arrangements; and (2) issue and sell its
commercial paper in principal amounts
not to exceed $1.5 billion outstanding
at any one time.
Dear Terri:
Enclosed is a check in the amount of $1,000.00 for the payment of the application fee.
Your attention to this matter is appreciated.
Sincerely,
u
Portlnd24430674.5 00 I 750740002
EXECUTION COPY
f4( /'a;^71$500,000,000
364-DAY
CREDIT AGREEMENT
dated as of
June 3,2003
among
PacifiCorp,
The Banks PartyHereto
JPMorgan Chase Bank
as Administrative Agent and Issuing Bank
and
HSBC Bankplc
as Syndication Agent
J.P. Morgan Securities Inc. and
HSBC Securities (USA) hc.
Co-Lead Arrangers and Joint Bookrunners
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Table of Contents
ARTICLE 1
DerrNrnoNs
Section 1.01. Definitions.........
Section 1.02. Accounting Terms and Determinations
Paee
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o 13
13Section 1.03. Types of Borrowings
ARTICLE 2
THa Cnrons
Section 2.01. Commitments to Lend .............. 14
Section 2.02. Notice of Committed Bonowings........ .......14
Section 2.03. Competitive Bid B oruowings. ..........
Section 2.04. Notice to Banl<s; Funding of Loans
Section 2.05. Notes
Section 2.06. Maturity of Loans...................
Section 2.07. Interest Rates
Section 2.08. Method of Electing Interest Rates......
Section 2.09. Fees
Section 2.10. Optional Termination or Reduction of Commitments...........
Section 2.11. Mandatory Termination of Commitments......
Section 2.12. Optional Prepayments
Section 2.13. General Provisions as to Payments
Section 2.14. Funding Losses
15
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20
20
20
22
23
24
24
24
24
25
25
26
26
Computation of Interest and Fees.
Regulation D Compensation
Letters of Credit ...
ARTICLE 3
CoNorrroNs
Section 3.0I. Effectiveness.....
Section 3.02. Borrowings and Issuances of Letters of Credit....
Section 2.15.
Section 2.16.
Section 2.17.
Section 4.01.
Section 4.02.
Section 4.03.
Section 4.04.
Section 4.05.
Section 4.06.
Section 4.07.
Section 4.08.
31
32
ARTICLE 4
RrpnrseNrerloNs AND WARRANTIES
Corporate Existence and Power ................ JJ
Corporate and Governmental Authorization; No Contravention.. 33
B inding Effect........
Fin an ci al Informati on .....
Liligation.
Environmental Matters
Compliance with ERISA.......
Taxes
34
34
35
35
35
35
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Section 4.09. Not an Investment Company 35
35Section 4.10. Insurance.........
ARTICLE 5
CoveNe,Nrs
Information...,.,36
Maintenance of Property; Insurance............ ............... 38
Conduct of Business and Maintenance of Existence..... 38
...38Compliance with Laws .........
Total Debt
Interest Coverage Ratio
Negative Pledge .......
Consoltdations, Mergers and Sales of Assets .....................40
Use of Proceeds 4t
Guarantees ....4t
Section 5.01.
Section 5.02.
Section 5.03.
Section 5.04.
Section 5.05.
Section 5.06.
Section 5.07.
Section 5.08.
Section 5.09.
Section 5.10.
39
39
39
ARTICLE 6
DBraulrs
Section 6.01. Events of Defau1t............... .......41
Section 6.02. Notice of Defau1t............... .......43
Section 6.03. Cash Cover........ .....43
ARTICLE 7
Tsr AoumrsrRATryE AceNr
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Section 7.01.
Section 7.02.
Section 7.03.
Section 7.04.
Section 7.05.
Section 7.06.
Section 7.07.
Section 7.08.
Section 7.09.
Section 7.10.
Appointment and Authorization
Administrative Agent and Afiliates ..
Action by Administrative Agent
Consultation with Experts .....
Liability of Administrative Agent ..........
Indemnification .........
Credit Decision
Successor Administrative Agent.
Administrative Agent's Fee........
Syndication Agent .....
ARTICLE 8
CueNce TN CIRCUMSTANCES
Basis for Determining Interest Rate Inadequate or Unfair
Illegality
Increased Cost and Reduced Return......
Taxes
Base Rate Loans Substitutedfor Affected Fixed Rate Loans.
Substitution of Bank...
44
44
44
44
44
45
45
45
46
46
Section 8.01.
Section 8.02.
Section 8.03.
Section 8.04.
Section 8.05.
Section 8.06.
46
46
47
49
50
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Section 9.01.
Section 9.02.
Section 9.03.
Section 9.04.
Section 9.05.
Section 9.06.
Section 9.07.
Section 9.08.
Section 9.09.
Section 9.10.
Commitment Schedule
Pricing Schedule
ARTICLE 9
MrscsrreNrous
Notices......
No Waivers
Expenses ; Indemnification .........
Set-Offs ; Sharing.....
Amendments and Waivers ....
Successors and Assigns................
Confidentiality.
Collateral.
Governing Law; Submission to Jurisdiction
Counterparts ; Integration ...............
DGIIBITS
51
52
52
..52
53
54
56
57
57
58
Exhibit A -
Exhibit B -
Exhibit C -
Exhibit D -
Exhibit E -
Exhibit F -
Exhibit G -
Note
Competitive Bid Quote Request
Invitation for Competitive Bid Quotes
Competitive Bid Quote
Opinion of Counsel for the Borrower
Opinion of Special Counsel for the Agent
Assignment and Assumption Agreement
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364.DAY CREDIT AGREEMENT
364-DAY CREDIT AGREEMENT dated as of June 3,2003 among
PACIFICORP, the BANKS party hereto, JPMORGAN CHASE BANK, as
Administrative Agent and Issuing Bank, and HSBC BANK PLC, as Syndication
Agent.
The parties hereto agree as follows:
ARTICLE 1
DBrwruoNs
Section 1.01. Definitions. The following terms, as used herein, have the
following meanings:
"Absolute Rate Auction" means a solicitation of Competitive Bid Quotes
setting forth Competitive Bid Absolute Rates pursuant to Section 2.03.
"Administrative Questionnaire" means, with respect to each Bank, the
administrative questionnaire in the form submitted to such Bank by the
Administrative Agent and submitted to the Administrative Agent (with a copy to
the Borrower) duly completed by such Bank.
"Administrative Agent" means JPMCB in its capacity as administrative
agent for the Banks hereunder, and its successors in such capacity.
"Agent" means the Administrative Agent or the Syndication Agent.
"Agreement", when used with reference to this Agreement, means this
364-Day Credit Agreement dated as of June 3,2003, as amended from time to
time after the date hereof.
"Applicable Lending Office" means, with respect to any Bank, (i) in the
case of its Base Rate Loans, its Domestic Lending Office, (ii) in the case of its
Euro-Dollar Loans, its Euro-Dollar Lending Office and (iii) in the case of its
Competitive Bid Loans, its Competitive Bid Lending Office.
"Approved Fund" means any Fund that is administered or managed by (i)
a Bank, (ii) an affiliate of a Bank or (iii) an entity or an affiliate of an entity that
administers or manages a Bank.
"Assignee" has the meaning set forth in Section 9.06(c).
"Authorized Officer" means (i) the President and Chief Executive
Officer of the Borrower, (ii) the Treasurer of the Borrower or (iii) any other
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officer of the Borrower designated as such by the officers referred to in clauses (i)
and (ii) in a written instrument furnished to the Administrative Agent.
"Bank" means each bank or other financial institution listed on the
signature pages hereof each Assignee which becomes a Bank pursuant to Section
9.06(c), and their respective successors.
"Base Rate" means, for any day, a rate per annum equal to the higher of
(i) the Prime Rate for such day and (ii) the sum of ll2 of lo/o plus the Federal
Funds Rate for such day.
"Borrower" means PacifiCorp, an Oregon corporation, and its successors
"Borrower's 2002 Form 10-K" means the Borrower's annual report on
Form 10-K for the fiscal year ended March 31,2002, as filed with the Securities
and Exchange Commission pursuant to the Securities Exchange Act of 1934.
"Borrowing" has the meaning set forth in Section 1.03.
"Capita,lized Lease Obligation" means, with respect to any Person, the
obligation of such Person to pay rent or other amounts under any lease of real or
personal property which obligation is required to be classified and accounted for
as a capital lease on the balance sheet ofsuch Person under generally accepted
accounting principles (including the Statement of Financial Accounting Standards
No. 13 of the Financial Accounting Standards Board, but without regard to
paragraph 48 of such Statement) and, for purposes of this Agreement, the amount
of such obligation shall be the capitalized amount thereof determined in
accordance with generally accepted accounting principles (including such
Statement No. 13).
"Commitment" means (i) with respect to any Bank listed on the signature
pages hereof, the amount set forth opposite its name on the Commitment
Schedule as its Commitrnent or (ii) with respect to any Assignee, the amount of
the transferor Bank's Commitment assigned to such Assignee pursuant to Section
9.06(c), in each case as such amount may be reduced from time to time pursuant
to Section 2.10 or changed as a result of an assignment pursuant to Section
9.06(c).
"Committed Loan" means a Revolving Credit Loan or a Term Loan;
provided that, if any such loan or loans (or portions thereof) are combined or
subdivided pursuant to a Notice of lnterest Rate Election, the term "Committed
Loan" shall refer to the combined principal amount resulting from such
combination or to each of the separate principal amounts resulting from such
subdivision, as the case may be.
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"Base Rate Loan" means a Committed Loan that bears interest at the
Base Rate pursuant to the applicable Notice of Committed Borrowing or Notice of
Interest Rate Election, the last sentence of Section 2.08(a), Section 2.17(c)(ii) or
Article 8.
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"Commitment Schedule" means the Commitment Schedule attached
hereto.
"Competitive Bid Absolute Rate" has the meaning set forth in Section
2.03(d).
"Competitive Bid Absolute Rate Loan" means a loan made or to be
made by a Bank pursuant to an Absolute Rate Auction.
"Competitive Bid Lending Office" means, as to each Bank, its Domestic
Lending Offrce or such other office, branch or affiliate of such Bank as it may
hereafter designate as its Competitive Bid Lending Office by notice to the
Borrower and the Administrative Agent; provided that any Bank may from time
to time by notice to the Borrower and the Administrative Agent designate separate
Competitive Bid Lending Offrces for its Competitive Bid LIBOR Loans, on the
one hand, and its Competitive Bid Absolute Rate Loans, on the other hand, in
which case all references herein to the Competitive Bid Lending Office of such
Bank shall be deemed to refer to either or both of such offices, as the context may
require.
"Competitive Bid LIBOR Loan" means a loan made or to be made by a
Bank pursuant to a LIBOR Auction (including such a loan bearing interest at the
Base Rate pursuant to Section 8.01(a)).
"Competitive Bid Loan" means a Competitive Bid LIBOR Loan or a
Competitive Bid Absolute Rate Loan.
"Competitive Bid Margin" has the meaning set forth in Section 2.03(d).
"Competitive Bid Quote" means an offer by a Bank to make a
Competitive Bid Loan in accordance with Section 2.03.
"Consolidated Subsidiary" means at any date any Subsidiary or other
entity the accounts of which would be consolidated with those of the Borrower in
its consolidated financial statements if such statements were prepared as of such
date.
"Debt" of any Person means at any date, without duplication, (i) all
obligations of such Person for borrowed money, (ii) all obligations of such Person
evidenced by bonds (other than surety bonds), debentures, notes or other similar
instruments, (iii) all obligations of such Person to pay the deferred purchase price
of property or services, except trade accounts payable arising in the ordinary
course of business, (iv) all Capitalized Lease Obligations of such Person, (v) all
non-contingent reimbursement, indemnity or similar obligations of such Person in
respect of amounts paid under a letter of credit, surety bond or similar instrument,
(vi) all Debt of others secured by a Lien on any asset of such Person, whether or
not such Debt is assumed by such Person, and (vii) all Debt of others Guaranteed
by such Person.
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"Default" means any condition or event which constitutes an Event of
Default or which with the giving of notice or lapse of time or both would, unless
cured or waived, become an Event of Default.
"Domestic Business Day" means any day except a Saturday, Sunday or
other day on which commercial banks in New York City, New York, Los
Angeles, California or San Francisco, Califomia are authorizedby law to close.
"Domestic Lending Office" means, as to each Bank, its office located at
its address set forth in its Administrative Questionnaire (or identified in its
Administrative Questionnaire as its Domestic Lending Office) or such other office
as such Bank may hereafter designate as its Domestic Lending Office by notice to
the Borrower and the Administrative Agent.
"EBITDA" means, for any period, Net Income for such period plus, to the
extent deducted in determining Net Income for such period, the aggregate amount
of (i) Interest Expense, (ii) income tax expense and (iii) depreciation, amortization
and other similar non-cash charges.
"Effective Date" means the date on which this Agreement becomes
effective pursuant to Section 3.01.
"Electricity Forward Contract" means a forward contract (i) pursuant to
which the Borrower is entitled to make or receive payment based on a differential
or contracted price and the actual spot market of electricity and (ii) which is
utilized by the Borrower to hedge its excess or shortage of net electricity for
future months.
"Environmental Laws" means any and all federal, state, local and foreign
statutes, laws, regulations, ordinances, rules, judgments, orders, decrees, permits,
concessions, grants, franchises, licenses, agreements or other governmental
restrictions relating to the environment or to emissions, discharges or releases of
pollutants, contaminants, petroleum or petroleum products, chemicals or
industrial, toxic or hazardous substances or wastes into the environment
including, without limitation, ambient air, surface water, ground water, or land, or
otherwise relating to the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of pollutants, contaminants, petroleum or
petroleum products, chemicals or industrial, toxic or hazardous substances or
wastes or the clean-up or other remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended, or any successor statute.
"ERISA Group" means all members of a controlled group of corporations
and all trades or businesses (whether or not incorporated) under corrmon control
which, together with the Borrower, are treated as a single employer under Section
414 of the Intemal Revenue Code.
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"Euro-Dollar Business Day" means any Domestic Business Day on
which commercial banks are open for international business (including dealings in
dollar deposits) in London.
"Euro-Dollar Lending Office" means, as to each Bank, its office, branch
or affiliate located at its address set forth in its Administrative Questionnaire (or
identified in its Administrative Questionnaire as its Euro-Dollar Lending Office)
or such other office, branch or affiliate of such Bank as it may hereafter designate
as its Euro-Dollar Lending Office by notice to the Borrower and the
Administrative Agent.
"Euro-Dollar Loan" means a Committed Loan that bears interest at a
Euro-Dollar Rate pursuant to the applicable Notice of Committed Borrowing or
Notice of Interest Rate Election.
"Euro-Dollar Margin" has the meaning set forth in Section 2.07(b).
"Euro-Dollar Rate" means a rate of interest determined pursuant to
Section 2.07b) on the basis of the London Interbank Offered Rate.
"Euro-Dollar Reserve Percentage" means for any day that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserye requirement for a member bank of the Federal
Reserve System in New York City with deposits exceeding five billion dollars in
respect of "Eurocurency liabilities" (or in respect of any other category of
liabilities which includes deposits by reference to which the interest rate on
Euro-Dollar Loans is determined or any category of extensions of credit or other
assets which includes loans by a non-United States office of any Bank to United
States residents).
"Event of Default" has the meaning set forth in Section 6.01
"Existing Credit Agreement" means the $500,000,000 364-Day
Agreement dated as of June 4,2002 among the Borrower, the banks party thereto
and JPMCB as agent for such banks.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upwards, if necessary, to the nearest 1/100th of l%) equal to the weighted average
of the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers on such day, as published by
the Federal Reserve Bank of New York on the Domestic Business Day next
succeeding such day,provided that (i) if such day is not a Domestic Business
Day, the Federal Funds Rate for such day shall be such rate on such transactions
on the next preceding Domestic Business Day as so published on the next
succeeding Domestic Business Day, and (ii) if no such rate is so published on
such next succeeding Domestic Business Day, the Federal Funds Rate for such
day shall be the average rate quoted to JPMorgan Chase Bank on such day on
such transactions as determined by the Administrative Agent.
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"Final Maturity Date" means the first anniversary of the Termination
Date or, if such day is not a Euro-Dollar Business Day, the next preceding Euro-
Dollar Business Day.
"Fiscal Quarter" means a fiscal quarter of the Borrower.
"Fixed Rate Loans" means Euro-Dollar Loans or Competitive Bid Loans
(excluding Competitive Bid LIBOR Loans bearing interest at the Base Rate
pursuant to Section 8.01(a) or any combination of the foregoing.
"Fund" means any Person (other than a natural Person) that is (or will be)
engaged in making, purchasing, holding or otherwise investing in commercial
loans and similar extensions of credit in the ordinary course of its business.
"Group of Loans" means at any time a group of Loans consisting of (i)
all Committed Loans which are Base Rate Loans at such time or (ii) all Euro-
Dollar Loans having the same Interest Period at such time; provided that, if a
Committed Loan of any particular Bank is converted to or made as a Base Rate
Loan pursuant to Article 8, such Loan shall be included in the same Group or
Groups of Loans from time to time as it would have been in if it had not been so
converted or made.
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Debt or other
obligation of any other Person and, without limiting the generality of the
foregoing, any obligation, direct or indirect, contingent or otherwise, of such
Person (i) to purchase or pay (or advance or supply funds for the purchase or
payment of) such Debt or other obligation (whether arising by virtue of
partnership arrangements, by agreement to keep-well, to purchase assets, goods,
securities or services, to take-or-pay, or to maintain financial statement conditions
or otherwise) or (ii) entered into for the purpose of assuring in any other manner
the obligee of such Debt or other obligation of the payment thereof or to protect
such obligee against loss in respect thereof (in whole or in part),provided that the
term Guarantee shall not include endorsements for collection or deposit in the
ordinary course of business. The term "Guarantee" used as a verb has a
corresponding meaning.
"Hedging Agreement" means any rate swap transaction, basis swap,
forward rate transaction, commodity swap, commodity option, equity or equity
index swap, equity or equity index option, bond option, interest rate option,
foreign exchange transaction, cap transaction, floor transaction, collar transaction,
currency swap transaction, cross-currency rate swap transaction, currency option
or any other similar transaction (including any option with respect to any of the
foregoing transactions) or any combination of the foregoing transactions.
"HSBC Bank" means HSBC Bank plc, and its successors.
"fndemnitee" has the meaning set forth in Section 9.03(b).
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"Inter-Company Loan Agreement" means (i) the Inter-Company Loan
Agreement dated as of April 4,1983 irmong the Borrower and certain of its
Subsidiaries and affiliates, as in effect on the date hereof and (ii) any additional or
substitute intercompany lending agreement, or amendment thereto, on
substantially the terms and conditions (other than rates of interest) of the
agreement described in clause (i).
"Interest Coverage Ratio" means, at the end of any Fiscal Quarter, the
ratio of (i) EBITDA for the period of four consecutive Fiscal Quarters then ended
to (ii) Interest Expense for such period.
"Interest Expense" means, for any period, the interest expense of the
Borrower for such period net of interest income.
"Interest Period" means: (1) with respect to each Euro-Dollar Loan, the
period commencing on the date of borrowing specified in the applicable Notice of
Borrowing or on the date specified in an applicable Notice of lnterest Rate
Election and ending one, two, three or six months thereafter as the Borrower may
elect in such notice; provided that:
(a) any lnterest Period which would otherwise end on a day which
is not a Euro-Dollar Business Day shall be extended to the next
succeeding Euro-Dollar Business Day unless such Euro-Dollar Business
Day falls in another calendar month, in which case such Interest Period
shall end on the next preceding Euro-Dollar Business Day;
(b) any lnterest Period which begins on the last Euro-Dollar
Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such
Interest Period) shall, subject to clause (c) below, end on the last
Euro-Dollar Business Day of a calendar month; and
(c) no Interest Period shall end after the Termination Date (or,
with respect to any Term Loan, after the Final Maturity Date).
(2) with respect to each Competitive Bid LIBOR Loan, the period
commencing on the date of borrowing specified in the applicable Notice of
Borrowing and ending (x) one or two weeks, (y) one, two, three or six months or
(z) a specified number of days (but not less than seven days) thereafter, as the
Borrower may elect in accordance with Section 2.03; provided that:
(a) any Interest Period which would otherwise end on aday which
is not a Euro-Dollar Business Day shall be extended to the next
succeeding Euro-Dollar Business Day unless such Euro-Dollar Business
Day falls in another calendar month, in which case such lnterest Period
shall end on the next preceding Euro-Dollar Business Day;
(b) any one-month, two-month, three-month or six-month Interest
Period which begins on the last Euro-Dollar Business Day of a calendar
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month (or on a day for which there is no numerically corresponding day in
the calendar month at the end of such Interest Period) shall, subject to
clause (c) below, end on the last Euro-Dollar Business Day of a calendar
month; and
(c) no Interest Period shall end after the Termination Date.
(3) with respect to each Competitive Bid Absolute Rate Loan, the
period commencing on the date of borrowing specified in the applicable Notice of
Borrowing and ending such number of days (but not less than 7 days) thereafter as
the Borrower may elect in accordance with Section2.}3; provided that:
(a) any Interest Period which would otherwise end on aday which
is not a Euro-Dollar Business Day shall be extended to the next
succeeding Euro-Dollar Business Day; and
(b) no Interest Period shall end after the Termination Date.
"Internal Revenue Code" means the lnternal Revenue Code of 1986, as
amended, or any successor statute.
"Investment" means any investment in any Person, whether by means of
share purchase, capital contribution, loan, time deposit or otherwise.
"Issuing Bank" means JPMCB or any other Bank designated by the
Borrower that may agree to issue Letters of Credit hereunder pursuant to an
instrument in form reasonably satisfactory to the Administrative Agent, each in its
capacity as an issuer of a Letter of Credit hereunder.
"JPMCB" means JPMorgan Chase Bank, and its successors
"Letter of Credit" means a letter of credit issued or to be issued
hereunder by an Issuing Bank.
"Letter of Credit Liabilities" means, for any Bank and at any time, such
Bank's ratable participation in the sum of (i) the aggregate amount then owing by
the Borrower in respect of amounts paid by the Issuing Bank upon a drawing
under a Letter of Credit issued hereunder and (ii) the aggregate amount then
available for drawing under all outstanding Letters of Credit.
"LIBOR Auction" means a solicitation of Competitive Bid Quotes setting
forth Competitive Bid Margins based on the London Interbank Offered Rate
pursuant to Section 2.03.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset. For
the purposes of this Agreement, the Borrower shall be deemed to own subject to a
Lien any asset which it has acquired or holds subject to the interest of a vendor or
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lessor under any conditional sale agreement, capital lease or other title retention
agreement relating to such asset.
"Loan" means a Committed Loan or a Competitive Bid Loan and
"Loans" means Committed Loans or Competitive Bid Loans or any combination
of the foregoing.
"London Interbank Offered Rate" has the meaning set forth in Section
2.07(b).
"Material Debt" means Debt of the Borrower arising under a single or
series of related instruments or other agteements exceeding $35,000,000 in
principal amount.
"Material Hedging Obligations" means payment obligations in respect
of one or more Hedging Agreements with a single counterparty which have
Negative Termination Values exceeding $35,000,000 in aggregate amount.
"Material Plan" means at any time a Plan or Plans having aggregate
Unfunded Liabilities in excess of $50,000,000.
"Multiemployer Plan" means at any time an employee pension benefit
plan within the meaning of Section a00l(a)(3) of ERISA to which any member of
the ERISA Group is then making or accruing an obligation to make contributions
or has within the preceding five plan years made contributions, including for these
purposes any Person which ceased to be a member of the ERISA Group during
such five year period.
"Negative Termination Value" means, with respect to any Hedging
Agreement of the Borrower, the amount (if any) that the Borrower would be
required to pay if such Hedging Agreement were terminated by reason of a
default by or other termination event relating to the Borrower, such amount to be
determined on the basis of an estimate made by the Borrower in good faith. The
Negative Termination Value of any such Hedging Agreement at any date shall be
determined (i) as of the end of the most recent Fiscal Quarter ended on or prior to
such date if such Hedging Agreement was then outstanding or (ii) as of the date
such Hedging Agreement is entered into if it is entered into after the end of such
Fiscal Quarter. However, if an applicable agreement between the Borrower and
the relevant counterparty provides that, upon any such termination by such
counterparty, one or more other Hedging Agreements (if any then exist) between
the Borrower and such counterparty would also terminate and the amount (if any)
payable by the Borrower would be a net amount reflecting the termination of all
the Hedging Agreements so terminated, then the Negative Termination Value of
all the Hedging Agreements subject to such netting shall be, at any date, a single
amount equal to such net amount (if any) payable by the Borrower, determined as
of the later of (i) the end of the most recently ended Fiscal Quarter or (ii) the date
on which the most recent Hedging Agreement subject to such netting was entered
into.
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"Net Income" means, for any period, the net income of the Borrower for
such period on a parent-only basis (i.e., exclusive of income or loss of any other
Person which would be included in the net income of the Borrower solely by
reason of consolidation or equity method accounting), adjusted to exclude the
effect of any extraordinary or other non-recurring gain (but not loss) and to
include (without duplication) any cash dividends received by the Borrower from
its Subsidiaries.
"Notes" means promissory notes of the Borrower, substantially in the
form of Exhibit A hereto, evidencing the obligation of the Borrower to repay the
Loans, and "Note" means any one of such promissory notes issued hereunder.
"Notice of Borrowing" means a Notice of Committed Borrowing (as
defined in Section 2.02) or a Notice of Competitive Bid Borrowing (as defined in
Section 2.03(f)).
"Notice of Interest Rate Election" has the meaning specified in Section
o "Notice of Issuance" means any notice delivered pursuant to Section
2.17(b) hereof.
"Parent" means, with respect to any Bank, any Person controlling such
Bank.
"Participant" has the meaning set forth in Section 9.06(b)
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Person" means an individual, a corporation, a partnership, *
association, a trust or any other entity or organization, including a government or
political subdivision or an agency or insfumentality thereof.
"Plan" means at any time an employee pension benefit plan (other than a
Multiemployer Plan) which is covered by Title IV of ERISA or subject to the
minimum funding standards under Section 412 of the Internal Revenue Code and
either (i) is maintained, or contributed to, by any member of the ERISA Group for
employees of any member of the ERISA Group or (ii) has at any time within the
preceding five years been maintained, or contributed to, by any Person which was
at such time a member of the EzuSA Group for employees of any Person which
was at such time a member of the ERISA Group.
"Pollution Bonds" means bonds issued for the purpose of financing all or
any part of the cost of facilities acquired or constructed for use by the Borrower;
provided that the interest on such bonds is exempt from tax under the Internal
Revenue Code as in effect when the debt evidenced by such bonds is incurred.
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"Pollution LC" means a letter of credit issued for the purpose of (i)
supporting payments of principal and interest on Pollution Bonds or (ii) providing
funds to purchase Pollution Bonds from the holders thereof.
"Pricing Schedule" means the Pricing Schedule attached hereto.
"Prime Rate" means the rate of interest publicly announced by JPMCB in
New York City from time to time as its Prime Rate.
"Qualifying Junior Subordinated Debt" means subordinated debt of the
Borrower which has (i) an original maturity of 20 years or more; (ii) provisions
permitting the Borrower to defer the payment of interest for a period or periods of
20 consecutive quarters or more; (iii) no principal payments that are due and
payable until after the Final Maturity Date; and (iv) all other characteristics
(except interest rate) materially no less favorable to the Borrower than the
Borrower's 8 ll4% Junior Subordinated Deferrable lnterest Debentures, Series C
maturing on June 30,2036 and described in PacifiCorp Capital I's Prospectus
Supplement dated June 6, 1996.
"Quarterly Payment Dates" means each March 31, June 30, September
30 and December 31.
"Regulation U" means Regulation U of the Board of Govemors of the
Federal Reserve System, as in effect from time to time.
"Reimbursement Obligation" has the meaning specified in Section
2.17(c)
"Required Banks" means at any time Banks having more than 50% of the
Total Commitment or, if the Commitments shall have been terminated, holding
more than 50% of the Total Outstanding Amount.
"Revolving Credit Loan" means a loan made by a Bank pursuant to
Section 2.01(a).
"ScottishPower" means Scottish Power plc, a public limited company
incorporated under the laws of Scotland.
"Subsidiary" means any corporation or other entity of which securities or
other ownership interests having ordinary voting power to elect a majority of the
board of directors or other persons performing similar functions are at the time
directly or indirectly owned by the Borrower.
"Syndication Agent" means HSBC Bank in its capacity as syndication
agent in respect of this Agreement, and its successors in such capacity.
"Tangible Net Worth" means at any date the shareholders' equity of the
Borrower less its lntangible Assets, all determined as of such date. For purposes
of this definition "Intangible Assets" means the amount (to the extent reflected in
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determining such shareholders' equity) of (i) all write-ups (other than write-ups
resulting from foreign currency translations and write-ups of assets of a going
concern business made within twelve months after the acquisition of such
business) subsequent to March 31,2002 in the book value of any asset owned by
the Borrower, (ii) all Investments in Subsidiaries and equity investments in
Persons which are not Subsidiaries, (iii) unamortized debt discount and expense
and unamortized deferred charges, but only to the extent that such costs are not
recoverable by the Borrower through inclusion in the Borrower's utility rates and
(iv) goodwill, patents, trademarks, service marks, trade names, copyrights,
organization or developmental expenses and other intangible items.
"Termination Date" means June 1, 2004, or, if such day is not a
Euro-Dollar Business Day, the next preceding Euro-Dollar Business Day.
"Term Loan" means a loan made by a Bank pursuant to Section 2.01(b)
"Total Capitalization" of the Borrower at any date means the sum of (i)
all Debt of the Borrower (other than Debt of the Borrower outstanding under the
Inter-Company Loan Agreement), (ii) all Debt of the Borrower outstanding under
the Inter-Company Loan Agreement net of any advances by the Borrower to any
Subsidiary or affiliate under the lnter-Company Loan Agreement (but not below
zero), (iii) prefened stock of the Borrower and (iv) common stock equity of the
Borrower, /ess the amount (if any) by which the aggregate amount of the
Borrower's investments in Subsidiaries exceeds $500,000,000, all determined as
of such date; provided that Qualifying Junior Subordinated Debt shall be included
in Total Capitalization only if and to the extent that the inclusion thereof does not
cause the aggregate amount of all preferred stock and Qualifying Junior
Subordinated Debt to exceed l5% of Total Capitalization.
"Total Commitment" means at any time the aggregate amount of the
Commitments of all Banks at such time (as such Commitments may be reduced
from time to time pursuant to Section 2.10 hereof). The initial amount of the
Total Commitment is $500,000,000.
"Total Debt" of the Borrower atany date means the sum of (i) all Debt of
the Borrower (other than (x) Debt of the Borrower outstanding under the
Inter-Company Loan Agreement and (y) Qualifying Junior Subordinated Debt),
(ii) all Debt of the Borrower outstanding under the Inter-Company Loan
Agreement net of any advances by the Borrower to any Subsidiary or affiliate
under the Inter-Company Loan Agreement (but not below zero) and (iii) any
portion of mandatorily redeemable preferred stock of the Borrower that is a
current liability, all determined as of such date.
"Total Outstanding Amount" means at any time the sum of (i) the
aggregate outstanding principal amount of the Loans at such time after giving
effect, if one or more Loans are being made at such time, to any substantially
concurrent application of the proceeds thereof to repay one or more other Loans
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plus,without duplication, (ii) the aggregate amount of the Letter of Credit
Liabilities of all Banks at such time.
"Umbrella Mortgage" means the Indenture of Mortgage and Deed of
Trust dated as of January 9,1989 between the Borrower and JPMorgan Chase
Bank (formerly known as The Chase Manhattan Bank, successor by merger to
Morgan Guaranty Trust Company of New York), as Trustee, as amended or
supplemented from time to time.
"Unfunded Liabilities" means, with respect to any Plan at any time, the
amount (if any) by which (i) the present value of all benefits under such Plan
exceeds (ii) the fair market value of all Plan assets allocable to such benefits
(excluding any accrued but unpaid contributions), all determined as of the then
most recent valuation date for such Plan, but only to the extent that such excess
represents a potential liability of a member of the ERISA Group to the PBGC or
any other Person under Title tV of ERISA.
"United States" means the United States of America, including the States
and the District of Columbia, but excluding its territories and possessions.
Section 1.02. Accounting Terms and Determinations. Unless otherwise
specified herein, all accounting terms used herein shall be interpreted, all
accounting determinations hereunder shall be made, and all financial statements
required to be delivered hereunder shall be prepared in accordance with generally
accepted accounting principles as in effect from time to time, applied on a basis
consistent (except for changes concurred in by the Borrower's independent public
accountants) with the most recent audited financial statements of the Borrower
delivered to the Banks; provided that, if the Borrower notifies the Administrative
Agent that the Borrower wishes to amend any covenant in Article 5 to eliminate
the effect of any change in generally accepted accounting principles on the
operation of such covenant (or if the Administrative Agent notifies the Borrower
that the Required Banks wish to amend Article 5 for such purpose), then the
Borrower's compliance with such covenant shall be determined on the basis of
generally accepted accounting principles in effect immediately before the relevant
change in generally accepted accounting principles became effective, until either
such notice is withdrawn or such covenant is amended in a manner satisfactory to
the Borrower and the Required Banks; provided further that the effects of
application of Statement of Financial Accounting Standards No. 133,
"Accounting for Derivative Instruments and Hedging Activities", with respect to
unsettled power purchase and power sale contracts of the Borrower shall be
eliminated in determining the Borrower's compliance with the covenants
contained in Sections 5.05 and 5.06. Unless the context otherwise requires, all
references to financial statements of the Borrower shall mean financial statements
of PacifiCorp only and not consolidated financial statements of PacifiCorp and its
Consolidated Subsidiaries.
Section 1.03. Types of Boruowings. The term "Borrowing" denotes the
aggregation of Loans of one or more Banks made or to be made to the Borrower
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pursuant to Article 2 on a single date, all of which Loans are of the same type
(subject to Article 8) and, except in the case of Base Rate Loans, have the same
initial Interest Period. Borrowings are classified for purposes of this Agreement
either by reference to the pricing of Loans comprising such Borrowing (e.g., a
"Euro-Dollar Borrowing" is a Borrowing comprised of Euro-Dollar Loans) or
by reference to the provisions of Article 2 under which participation therein is
determined (i.e., a "Committed Borrowing" is a Borrowing under Section 2.01
in which all Banks participate in proportion to their Commitments, while a
"Competitive Bid Borrowing" is a Borrowing under Section 2.03 in which the
Bank participants are determined on the basis of their bids in accordance
therewith).
ARTICLE 2
THe CREorrs
Section 2.01. Commitments to Lend. (a) Each Bank severally agrees, on
the terms and conditions set forth in this Agreement, to make loans to the
Borrower pursuant to this Section 2.01(a) from time to time from and after the
Effective Date and prior to the Termination Date in amounts such that (i) the
aggregate principal amount of Committed Loans by such Bank at any one time
outstandingplus the aggregate amount of its Letter of Credit Liabilities at such
time shall not exceed the amount of its Commitrnent and (ii) the Total
Outstanding Amount shall not exceed the Total Commitment. Within the
foregoing limits, the Borrower may borrow under this Section 2.01(a), repay, or to
the extent permitted by Section 2.12, prepay Loans and reborrow at any time prior
to the Termination Date under this Section 2.01(a).
(b) Each Bank severally agrees, on the terms and conditions set forth in
this Agreement, to make a loan to the Borrower on the Termination Date in an
amount such that (i) the aggregate principal amount of Committed Loans by such
Bank at any one time outstanding plus the aggregate amount of its Letter of Credit
Liabilities at such time shall not exceed the amount of its Commitment and (ii) the
Total Outstanding Amount shall not exceed the Total Commitment. Amounts of
any Loans made pursuant to this Section 2.01O) which are prepaid pursuant to
Section 2.12 shall not be reborrowed.
(c) Each Borrowing under this Section 2.01 shall be in an aggregate
principal amount of $10,000,000 or any larger multiple of $1,000,000 (except that
any such Borrowing may be in the aggregate amount available in accordance with
Section 3.02(b)) and shall be made from the several Banks ratably in proportion to
their respective Commitments.
Section 2.02. Notice of Committed Botowings. The Borrower shall give
the Administrative Agent notice (a "Notice of Committed Borrowing") not later
than 12:00 noon (New York City time) on (x) the date of each Base Rate
Borrowing and (y) the third Euro-Dollar Business Day before each Euro-Dollar
Borrowing, specifying :
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(a) the date of such Borrowing, which shall be a Domestic Business
Day in the case of a Base Rate Borrowing or a Euro-Dollar Business Day in the
case of a Euro-Dollar Borrowing,
(b) the aggregate amount of such Borrowing,
(c) whether the Loans comprising such Borrowing are to bear interest
initially at the Base Rate or a Euro-Dollar Rate, and
(d) in the case of a Euro-Dollar Borrowing, the duration of the initial
lnterest Period applicable thereto, subject to the provisions of the definition of
lnterest Period.
Section 2.03. Competitive Bid Boruowings.
(a) The Competitive Bid Option. In addition to Committed Borrowings
pursuant to Section 2.01, the Borrower may, as set forth in this Section, request
the Banks to make offers to make Competitive Bid Loans to the Borrower from
time to time prior to the Termination Date. The Banks may, but shall have no
obligation to, make such offers and the Borrower may, but shall have no
obligation to, accept any such offers in the manner set forth in this Section.
(b) Competitive Bid Quote Request. When the Borrower wishes to
request offers to make Competitive Bid Loans under this Section, it shall transmit
to the Administrative Agent by telex or facsimile transmission a Competitive Bid
Quote Request substantially in the form of Exhibit B hereto so as to be received
no later than 12:00 noon (New York City time) on (x) the fifth Euro-Dollar
Business Day prior to the date of Borrowing proposed therein, in the case of a
LIBOR Auction or (y) the Domestic Business Day next preceding the date of
Borrowing proposed therein, in the case of an Absolute Rate Auction (or, in either
case, such other time or date as the Borrower and the Administrative Agent shall
have mutually agreed and shall have notified to the Banks not later than the date
of the Competitive Bid Quote Request for the first LIBOR Auction or Absolute
Rate Auction for which such change is to be effective) specifying:
(i) the proposed date of Borrowing, which shall be a
Euro-Dollar Business Day in the case of a LIBOR Auction or a Domestic
Business Day in the case of an Absolute Rate Auction,
(ii) the aggregate amount of such Borrowing, which shall be
$10,000,000 or a larger multiple of $1,000,000,
(iii) the duration of the Interest Period applicable thereto,
subject to the provisions of the definition of lnterest Period, and
(iv) whether the Competitive Bid Quotes requested are to set
forth a Competitive Bid Margin or a Competitive Bid Absolute Rate.
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The Borrower may request offers to make Competitive Bid Loans for
more than one lnterest Period in a single Competitive Bid Quote Request. No
Competitive Bid Quote Request shall be given within five Euro-Dollar Business
Days (or such other number of days as the Borrower and the Administrative
Agent may agree) of any other Competitive Bid Quote Request.
(c) Invitationfor Competitive Bid Quotes. Promptly upon receipt of a
Competitive Bid Quote Request, the Administrative Agent shall send to the Banks
by telex or facsimile transmission an Invitation for Competitive Bid Quotes
substantially in the form of Exhibit C hereto, which shall constitute an invitation
by the Borrower to each Bank to submit Competitive Bid Quotes offering to make
the Competitive Bid Loans to which such Competitive Bid Quote Request relates
in accordance with this Section.
(d) Submission and Contents of Competitive Bid Quotes. (i) Each Bank
may submit a Competitive Bid Quote containing an offer or offers to make
Competitive Bid Loans in response to any Invitation for Competitive Bid Quotes.
Each Competitive Bid Quote must comply with the requirements of this
subsection (d) and must be submitted to the Administrative Agent by telex or
facsimile transmission at its offices specified in or pursuant to Section 9.01 not
later than (x) 2:00 P.M. (New York City time) on the fourth Euro-Dollar Business
Day prior to the proposed date of Borrowing, in the case of a LIBOR Auction or
(y) 9:30 A.M. (New York City time) on the proposed date of Borrowing, in the
case of an Absolute Rate Auction (or, in either case, such other time or date as the
Borrower and the Administrative Agent shall have mutually agreed and shall have
notified to the Banks not later than the date of the Competitive Bid Quote Request
for the first LIBOR Auction or Absolute Rate Auction for which such change is to
be effective); provided that Competitive Bid Quotes submitted by the
Administrative Agent (or any affiliate of the Administrative Agent) in the
capacity of a Bank may be submitted, and may only be submitted, if the
Administrative Agent or such affrliate notifies the Borrower of the terms of the
offer or offers contained therein not later than (x) one hour prior to the deadline
for the other Banks, in the case of a LIBOR Auction or (y) 15 minutes prior to the
deadline for the other Banks, in the case of an Absolute Rate Auction. Subject to
Articles 3 and 6, any Competitive Bid Quote so made shall be irrevocable except
with the written consent of the Administrative Agent given on the instructions of
the Borrower.
(ii) Each Competitive Bid Quote shall be in substantially the
form of Exhibit D hereto and shall in any case specify:
(A) the proposed date of Borrowing,
(B) the principal amount of the Competitive Bid Loan
for which each such offer is being made, which principal amount
(w) may be greater than or less than the Commitment of the
quoting Bank, (x) must be $1,000,000 or a larger multiple thereof,
(y) may not exceed the principal amount of Competitive Bid
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Loans for which offers were requested and (z) may be subject to
an aggregate limitation as to the principal amount of Competitive
Bid Loans for which offers being made by such quoting Bank may
be accepted,
(C) in the case of a LIBOR Auction, the margin above
or below the applicable London lnterbank Offered Rate (the
"Competitive Bid Margin") offered for each such Competitive
Bid Loan, expressed as a percentage (rounded to the nearest
l/10,000th of l%) to be added to or subtracted from such base
rate,
(D) in the case of an Absolute Rate Auction, the rate
of interest per annum (rounded to the nearest 1/10,000th of l%)
(the "Competitive Bid Absolute Rate") offered for each such
Competitive Bid Loan, and
(E) the identity of the quoting Bank.
A Competitive Bid Quote may set forth up to five separate offers by the quoting
Bank with respect to each lnterest Period specified in the related Invitation for
Competitive Bid Quotes.
(iii) Any Competitive Bid Quote shall be disregarded if it:
(A) is not substantially in conformity with Exhibit D
hereto or does not specify all of the information required by
subsection (d)(ii);
(B) contains qualifying, conditional or similar
language;
(C) proposes terms other than or in addition to those
set forth in the applicable Invitation for Competitive Bid Quotes;
or
(D) arrives after the time set forth in subsection (d)(i)
(e) Notice to Boruower. The Administrative Agent shall promptly
notify the Borrower of the terms (x) of any Competitive Bid Quote submitted by a
Bank that is in accordance with subsection (d) and (y) of any Competitive Bid
Quote that amends, modifies or is otherwise inconsistent with a previous
Competitive Bid Quote submitted by such Bank with respect to the same
Competitive Bid Quote Request. Any such subsequent Competitive Bid Quote
shall be disregarded by the Administrative Agent unless such subsequent
Competitive Bid Quote is submitted solely to correct a manifest error in such
former Competitive Bid Quote. The Administrative Agent's notice to the
Borrower shall specify (A) the aggregate principal amount of Competitive Bid
Loans for which offers have been received for each Interest Period specified in
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the related Competitive Bid Quote Request, (B) the respective principal amounts
and Competitive Bid Margins or Competitive Bid Absolute Rates, as the case may
be, so offered and (C) if applicable, limitations on the aggregate principal amount
of Competitive Bid Loans for which offers in any single Competitive Bid Quote
may be accepted.
(0 Acceptance and Notice by Borrower. Not later than 12:00 noon
(New York City time) on (x) the third Euro-Dollar Business Day prior to the
proposed date of Borrowing, in the case of a LIBOR Auction or (y) the proposed
date of Borrowing, in the case of an Absolute Rate Auction (or, in either case,
such other time or date as the Borrower and the Administrative Agent shall have
mutually agreed and shall have notified to the Banks not later than the date of the
Competitive Bid Quote Request for the first LIBOR Auction or Absolute Rate
Auction for which such change is to be effective), the Borrower shall notify the
Administrative Agent of its acceptance or non-acceptance of the offers so notified
to it pursuant to subsection (e). In the case of acceptance, such notice (a "Notice
of Competitive Bid Borrowing') shall specify the aggregate principal amount of
offers for each lnterest Period that are accepted. The Borrower may accept any
Competitive Bid Quote in whole or inpart; provided that:
(D the aggregate principal amount of each Competitive Bid
Borrowing may not exceed the applicable amount set forth in the related
Competitive Bid Quote Request,
(ii) the principal amount of each Competitive Bid Borrowing
must be $10,000,000 or a larger multiple of $1,000,000,
(iii) acceptance of offers may only be made on the basis of
ascending Competitive Bid Margins or Competitive Bid Absolute Rates,
as the case may be,
(iv) the Borrower may not accept any offer that is described in
subsection (dxiii) or that otherwise fails to comply with the requirements
of this Agreement, and
(") immediately after such Competitive Bid Borrowing is
made, the Total Outstanding Amount shall not exceed the Total
Commitment.
(g) Allocation by Administrative Agent. If offers are made by two or
more Banks with the same Competitive Bid Margins or Competitive Bid Absolute
Rates, as the case may be, for a greater aggregate principal amount than the
amount in respect of which such offers are accepted for the related lnterest Period,
the principal amount of Competitive Bid Loans in respect of which such offers are
accepted shall be allocated by the Administrative Agent among such Banks as
nearly as possible (in multiples of $1,000,000, as the Administrative Agent may
deem appropriate) in proportion to the aggregate principal amounts of such offers.
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Determinations by the Administrative Agent of the amounts of Competitive Bid
Loans shall be conclusive in the absence of manifest error.
Section 2.04. Notice to Banl<s; Funding of Loans. (a) Upon receipt of a
Notice of Borrowing, the Administrative Agent shall promptly notify each Bank
of the contents thereof and of such Bank's share (if any) of such Borrowing and
such Notice of Borrowing shall not thereafter be revocable by the Borrower.
(b) Not later than 3:00 p.m. (New York City time) on the date of each
Borrowing, each Bank participating therein shall (except as provided in
subsection (c) of this Section) make available its share of such Borrowing, in
Federal or other funds immediately available in New York City, to the
Administrative Agent at its address specified in or pursuant to Section 9.01.
Unless the Administrative Agent determines that any applicable condition
specified in Article 3 has not been satisfied, the Administrative Agent will
promptly make the funds so received from the Banks available to the Borrower in
immediately available funds at the Administrative Agent's aforesaid address.
(c) If any Bank makes a Term Loan hereunder on a day on which the
Borrower is to repay any outstanding Revolving Credit Loan from such Bank,
such Bank shall apply the proceeds of its Term Loan to make such repayment and
only an amount equal to the difference (if any) between the amount being
borrowed and the amount being repaid shall be made available by such Bank to
the Administrative Agent as provided in subsection (b), or remitted by the
Borrower to the Administrative Agent as provided in Section 2.13, as the case
may be.
(d) Unless the Administrative Agent shall have received notice from a
Bank prior to the date of any Borrowing (or, in the case of a Base Rate
Borrowing, prior to 1:00 p.m. (New York City time) on the date of such
Borrowing) that such Bank will not make available to the Administrative Agent
such Bank's share of such Borrowing, the Administrative Agent may assume that
such Bank has made such share available to the Administrative Agent on the date
of such Borrowing in accordance with subsections (b) and (c) of this Section 2.04
and the Administrative Agent may, in reliance upon such assumption, make
available to the Borrower on such date a corresponding amount. If and to the
extent that such Bank shall not have so made such share available to the
Administrative Agent, such Bank and the Borrower severally agtee to repay to the
Administrative Agent forthwith on demand such corresponding amount together
with interest thereon, for each day from the date such amount is made available to
the Borrower until the date such amount is repaid to the Administrative Agent, at
(i) in the case of the Borrower, arate per annum equal to the higher of the Federal
Funds Rate for such day and the interest rate applicable to such Borrowing
pursuant to Section 2.07 and (ii) in the case of such Bank, the Federal Funds Rate
for such day. If such Bank shall repay to the Administrative Agent such
corresponding amount, such amount so repaid shall constitute such Bank's Loan
included in such Borrowing for purposes of this Agreement.
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Section 2.05. Notes. (a) Each Bank may, by notice to the Borrower and
the Administrative Agent, request (i) that its Loans be evidenced by a single Note
payable to the order of such Bank for the account of its Applicable Lending
Office in an amount equal to the aggregate unpaid principal amount of such
Bank's Loans or (ii) that its Loans of a particular type be evidenced by a separate
Note in an amount equal to the aggregate unpaid principal amount of such Loans.
Each such Note shall be promptly furnished to the requesting Bank and shall be in
substantially the form of Exhibit A hereto with appropriate modifications to
reflect the fact that it evidences solely Loans of the relevant t1pe. Each reference
in this Agreement to the "Note" of such Bank shall be deemed to refer to and
include any or all of such Notes, as the context may require.
(b) Each Bank shall record the date, amount, type and maturity of each
Loan made by it and the date and amount of each payment of principal made by
the Borrower with respect thereto, and may, if such Bank so elects in connection
with any transfer or enforcement of its Note, endorse on the schedule forming a
part thereof appropriate notations to evidence the foregoing information with
respect to each such Loan then outstanding provided that the failure of any Bank
to make any such recordation or endorsement shall not affect the obligations of
the Borrower hereunder or under the Notes. Each Bank is hereby irrevocably
authorized by the Borrower so to endorse its Note and to attach to and make a part
of its Note a continuation of any such schedule as and when required.
Section 2.06. Maturity of Loans. (a) Each Revolving Credit Loan shall
mature, and the principal amount thereof shall be due and payable (together with
interest accrued thereon) on the Termination Date.
(b) Each Term Loan shall mature, and the principal amount thereof shall
be due and payable (together with accrued interest thereon) on the Final Maturity
Date.
(c) Each Competitive Bid Loan shall mature, and the principal amount
thereof shall be due and payable (together with accrued interest thereon) on the
last day of the Interest Period applicable thereto.
Section 2.07. Interest Rates. (a) Each Base Rate Loan shall bear interest
on the outstanding principal amount thereof, for each day from the date such Loan
is made until it becomes due, at arate per annum equal to the Base Rate for such
day. Such interest shall be payable at maturity, quarterly in arrears on each
Quarterly Payment Date and, with respect to the principal amount of any Base
Rate Loan that is prepaid or converted to a Euro-Dollar Loan, on the date of such
prepayment or conversion. Any overdue principal of or overdue interest on any
Base Rate Loan shall bear interest, payable on demand, for each day until paid at
arate per annum equal to the sum of l% plus the Base Rate for such day.
(b) Each Euro-Dollar Loan shall bear interest on the outstanding
principal amount thereoi for each day during each lnterest Period applicable
thereto, at arate per annum equal to the sum of the Euro-Dollar Margin for such
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day plus the London lnterbank Offered Rate applicable to such Interest Period.
Such interest shall be payable for each lnterest Period on the last day thereof and,
if such Interest Period is longer than three months, at intervals of three months
after the first day thereof.
"Euro-Dollar Margin" means arate per annrm determined in accordance
with the Pricing Schedule.
"London Interbank Offered Rate" applicable to any Interest Period
means the rate appearing on Page 3750 of the Dow Jones Market Service (or on
any successor or substitute page ofsuch Service, or any successor to or substitute
for such Service, providing rate quotations comparable to those currently
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
11:00 a.m., London time, two Euro-Dollar Business Days prior to the
commencement of such Interest Period, as the rate for dollar deposits with a
maturity comparable to such lnterest Period. In the event that such rate is not
available at such time for any reason, then the "London Interbank Offered Rate"
applicable to such lnterest Period shall be the rate at which dollar deposits of
$5,000,000 and for a maturity comparable to such Interest Period are offered by
the principal London office of the Administrative Agent in immediately available
funds in the London interbank market at approximately 11:00 a.m., London time,
two Euro-Dollar Business Days prior to the commencement of such Interest
Period.
(c) Any overdue principal of or overdue interest on any Euro-Dollar
Loan shall bear interest, payable on demand, for each day from and including the
date payment thereof was due to but excluding the date of actual payment, at a
rate per annum equal to the higher of (i) 1% plus the rate otherwise applicable to
such Euro-Dollar Loan as provided in the preceding paragraph of this Section or
(i1) l% plus the Base Rate for such day.
(d) Subject to Section 8.01(a), each Competitive Bid LIBOR Loan shall
bear interest on the outstanding principal amount thereof, for the lnterest Period
applicable thereto, at arate per annum equal to the sum of the London lnterbank
Offered Rate for such lnterest Period plus (or minus) the Competitive Bid Margin
quoted by the Bank making such Loan in accordance with Section 2.03. Each
Competitive Bid Absolute Rate Loan shall bear interest on the outstanding
principal amount thereof, for the lnterest Period applicable thereto, at a rate per
annum equal to the Competitive Bid Absolute Rate quoted by the Bank making
such Loan in accordance with Section 2.03. Such interest shall be payable for
each Interest Period on the last day thereofand, ifsuch lnterest Period is longer
than three months, at intervals of three months after the first day thereof. Any
overdue principal of or overdue interest on any Competitive Bid Loan shall bear
interest, payable on demand, for each day until paid at arate per annum equal to
the sum of lYo plus the Base Rate for such day.
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(e) The Administrative Agent shall determine each interest rate
applicable to the Loans hereunder. The Administrative Agent shall give prompt
notice to the Borrower and the participating Banks of each rate of interest so
determined, and its determination thereof shall be conclusive in the absence of
manifest elTor.
Section 2.08. Method of Electing Interest Rates. (a) The Loans included
in each Committed Borrowing shall bear interest initially at the tlpe of rate
specified by the Borrower in the applicable Notice of Committed Borrowing.
Thereafter, the Borrower may from time to time elect to change or continue the
type of interest rate borne by each Group of Loans (subject to Section 2.08(d) and
the provisions of Article 8), as follows:
(i) if such Loans are Base Rate Loans, the Borrower may elect
to convert such Loans to Euro-Dollar Loans as of any Euro-Dollar
Business Day; and
(ii) if such Loans are Euro-Dollar Loans, the Borrower may
elect to convert such Loans to Base Rate Loans or continue such Loans as
Euro-Dollar Loans for an additional Interest Period, in each case as of the
last day of the then current Interest Period applicable thereto.
Each such election shall be made by delivering a notice (a "Notice of
Interest Rate Election") to the Administrative Agent not later than l2:00 noon
(New York City time) on the third Euro-Dollar Business Day before the
conversion or continuation selected in such notice is to be effective. A Notice of
Interest Rate Election may, if it so specifies, apply to only a portion of the
aggregate principal amount of the relevant Group of Loans; provided that (i) such
portion is allocated ratably among the Loans comprising such Group and (ii) the
portion to which such notice applies, and the remaining portion to which it does
not apply, are each at least $10,000,000 (unless such portion is comprised of Base
Rate [,oans). If no such notice is timely received before the end of an Interest
Period for any Group of Euro-Dollar Loans, the Borrower shall be deemed to
have elected that such Group of Loans be converted to Base Rate Loans at the end
of such lnterest Period.
O) Each Notice of Interest Rate Election shall specify:
(i) the Group of Loans (or portion thereof) to which such
notice applies;
(ii) the date on which the conversion or continuation selected
in such notice is to be effective, which shall comply with the applicable
clause of Section 2.08(a);
(iii) if the Loans comprising such Group of Loans are to be
converted, the new type of Loans and, if the Loans resulting from such
conversion are to be Euro-Dollar Loans, the duration of the next
succeeding Interest Period applicable thereto; and
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(iv) if such Loans are to be continued as Euro-Dollar Loans for
an additional Interest Period, the duration of such additional Interest
Period.
Each Interest Period specified in a Notice of Interest Rate Election shall
comply with the provisions of the definition of lnterest Period.
(c) Promptly after receiving a Notice of Interest Rate Election from the
Borrower pursuant to Section 2.08(a), the Administrative Agent shall notify each
Bank of the contents thereof and such notice shall not thereafter be revocable by
the Borrower.
(d) The Borrower shall not be entitled to elect to convert any
Committed Loans to, or continue any Committed Loans for an additional Interest
Period as, Euro-Dollar Loans if (i) the aggregate principal amount of any Group
of Euro-Dollar Loans created or continued as a result of such election would be
less than $10,000,000 or (ii) a Default shall have occurred and be continuing
when the Borrower delivers notice of such election to the Administrative Agent.
(e) If any Committed Loan is converted to a different type of Loan, the
Borrower shall pay, on the date of such conversion, the interest accrued to such
date on the principal amount being converted.
Section 2.09. Fees. (a) The Borrower shall pay to the Administrative
Agent for the account of the Banks ratably a facility fee at the Facility Fee Rate
(determined for each day in accordance with the Pricing Schedule). Such facility
fee shall accrue (i) for each day from and including the Effective Date to but
excluding the Termination Date (or earlier date of termination of the
Commitments in their entirety), on the Total Commitment (whether used or
unused) in effect at the close of business on such day and (ii) if the Total
Outstanding Amount is not zero on the Termination Date (or such earlier date of
termination), then for each day from and including the Termination Date (or such
earlier date of termination) to but excluding the date the Total Outstanding
Amount shall be reduced to zero, on the Total Outstanding Amount at the close of
business on such day.
(b) The Borrower shall pay (i) to the Administrative Agent for the
account of the Banks ratably a letter of credit fee accruing daily on the aggregate
undrawn amount of all outstanding Letters of Credit at a rate per annum equal to
the Euro-Dollar Margin for such day and (ii) to the Issuing Bank for its own
account, a letter of credit fronting fee accruing daily on the aggregate amount then
available for drawing under all Letters of Credit issued by such Issuing Bank at
such rate as previously agreed to in writing by the Borrower and the Issuing Bank.
(c) Accrued fees under this Section shall be payable quarterly in arrears
on each Quarterly Payment Date, beginning June 30, 2003, and on the
Termination Date (and, if later, the date the Total Outstanding Amount shall be
reduced to zero). If the Commitments are terminated in their entirety, all fees
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accrued under this Section to but excluding the effective date of such termination
shall be payable on such date.
Section 2.10. Optional Termination or Reduction of Commitments. The
Borrower may, upon at least three Domestic Business Days' notice to the
Administrative Agent, (i) terminate the Commitments at any time, if no Loans or
Letter of Credit Liabilities are outstanding at such time or (ii) ratably reduce from
time to time by an aggre9ate amount of at least $10,000,000 or any larger multiple
of $1,000,000, the Total Commitment in excess of the Total Outstanding Amount.
Section 2.11. Mandatory Termination of Commitments. The
Commitments shall terminate at the close of business on the Termination Date.
Section 2.12. Optional Prepayments. (a) The Borrower may, upon at
least one Domestic Business Day's notice to the Administrative Agent, prepay
any Group of Base Rate Loans (or any Competitive Bid Bonowing bearing
interest at the Base Rate pursuant to Section 8.01(a) in whole at any time, or
from time to time in part in amounts aggregating $10,000,000 or any larger
multiple of $1,000,000, by payrng the principal amount to be prepaid together
with accrued interest thereon to the date of prepayment. Each such optional
prepayment shall be applied to prepay ratably the Loans of the several Banks
included in such Group of Loans (or such Competitive Bid Borrowing).
(b) Subject to Section 2.14, the Borrower may, upon at least three
Euro-Dollar Business Days' notice to the Administrative Agent, prepay any
Group of Euro-Dollar Loans in whole at any time by paylng the principal amount
to be prepaid together with accrued interest thereon to the date of prepayment.
Each such optional prepayment shall be applied to prepay ratably the Euro-Dollar
Loans of the several Banks included in such Group of Loans.
(c) Except as provided in Section 2.12(a), the Borrower may not prepay
all or any portion of the principal amount of any Competitive Bid Loan prior to
the maturity thereof.
(d) Upon receipt of a notice of prepayment pursuant to this Section, the
Administrative Agent shall promptly notify each Bank of the contents thereof and
of such Bank's ratable share (if any) of such prepayment and such notice shall not
thereafter be revocable by the Borrower.
Section 2.13. General Provisions as to Payments. (a) The Borrower shall
make each payment of principal of, and interest on, the Loans and of fees
hereunder, not later than 12:00 Noon (New York City time) on the date when due,
in Federal or other funds immediately available in New York City, to the
Administrative Agent at its address referred to in Section 9.01. The
Administrative Agent will promptly distribute in like funds to each Bank its
ratable share of each such payment received by the Administrative Agent for the
account of the Banks. Whenever any payment of principal of, or interest on, the
Base Rate Loans or of fees shall be due on a day which is not a Domestic
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Business Day, the date for payment thereof shall be extended to the next
succeeding Domestic Business Day, Whenever any payment of principal of, or
interest on, the Euro-Dollar Loans shall be due on a day which is not a
Euro-Dollar Business Day, the date for payment thereof shall be extended to the
next succeeding Euro-Dollar Business Day unless such Euro-Dollar Business Day
falls in another calendar month, in which case the date for payment thereof shall
be the next preceding Euro-Dollar Business Day. Whenever any payment of
principal of, or interest on, the Competitive Bid Loans shall be due on a day
which is not a Euro-Dollar Business Day, the date for payment thereof shall be
extended to the next succeeding Euro-Dollar Business Day. If the date for any
payment of principal is extended by operation of law or otherwise, interest
thereon shall be payable for such extended time.
(b) Unless the Administrative Agent shall have received notice from the
Borrower prior to the date on which any payment is due to the Banks hereunder
that the Borrower will not make such payment in full, the Administrative Agent
may assume that the Borrower has made such payment in full to the
Administrative Agent on such date and the Administrative Agent may, in reliance
upon such assumption, cause to be distributed to each Bank on such due date an
amount equal to the amount then due such Bank. If and to the extent that the
Borrower shall not have so made such payment, each Bank shall repay to the
Administrative Agent forthwith on demand such amount distributed to such Bank
together with interest thereon, for each day from the date such amount is
distributed to such Bank until the date such Bank repays such amount to the
Administrative Agent, at the Federal Funds Rate for such day.
Section 2.14. Funding Losses. If the Bonower makes any payment of
principal with respect to any Fixed Rate Loan or any Fixed Rate Loan is
converted to a different tlpe of Loan (whether such payment or conversion is
pursuant to Section 2.12, Article 6, Article 8 or otherwise) on any day other than
the last day of the Interest Period applicable thereto, or the end of an applicable
period fixed pursuant to Section 2.07(c), or if the Borrower fails to borrow,
prepay, convert or continue any Fixed Rate Loan after notice has been given to
any Bank in accordance with Section 2.04(a),2.08(c) or 2.12(d), the Borrower
shall reimburse each Bank within 15 days after demand for any resulting loss or
expense incurred by it (or by an existing or prospective Participant in the related
Loan), including (without limitation) any loss incurred in obtaining, liquidating or
employing deposits from third parties, but excluding loss of margin for the period
after any such payment or conversion or failure to borrow, prepay, convert or
continue;provided that such Bank shall have delivered to the Borrower a
certificate as to the amount of such loss or expense, which certificate shall be
conclusive in the absence of manifest error.
Section 2.15. Computation of Interest and Fees. Interest based on the
Prime Rate hereunder shall be computed on the basis of a year of 365 days (or
366 days in a leap year) and paid for the actual number of days elapsed (including
the first day but excluding the last day). All other interest and fees shall be
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computed on the basis of a year of 360 days and paid for the actual number of
days elapsed (including the first day but excluding the last day).
Section 2.16. Regulation D Compensation. If and so long as a reserve
requirement of the type described in the definition of "Euro-Dollar Reserve
Percentage" is prescribed by the Board of Governors of the Federal Reserve
System (or any successor), each Bank subject to such requirement may require the
Borrower to pay, contemporaneously with each payment of interest on each of
such Bank's Euro-Dollar loans, additional interest on such Ewo-Dollar Loan at a
rate per annum determined by such Bank up to but not exceeding the excess of (i)
(A) the applicable London lnterbank Offered Rate divided by (B) one mtnus the
Euro-Dollar Reserve Percentage over (ii) the applicable London Interbank
Offered Rate. Any Bank wishing to require payment of such additional interest
(x) shall so notiff the Borrower and the Adminishative Agent, in which case such
additional interest on the Euro-Dollar l.oans of such Bank shall be payable to
such Bank at the place indicated in such notice with respect to each Interest
Period commencing at least three Euro-Dollar Business Days after such Bank
gives such notice and (y) shall notiff the Borrower, at least five Euro-Dollar
Business Days before each date on which interest is payable on the Euro-Dollar
Loans, of the amount then due to such Bank under this Section.
Section 2.17. Letters of Credit. (a) Commitment to Issue Letters of
Credit. Subject to the tenns and conditions hereof, each Issuing Bank agrees to
issue lrtters of Credit from time to time up to 30 days prior to the Termination
Date upon the request of the Borrower;provided that, immediately after each
Letter of Credit is issued (i) the Total Outstanding Amount shall not exceed the
Total Commitment and (ii) the aggegate amount of the Letter of Credit Liabilities
shall not exceed $200,000,000. Upon the date of issuance by an Issuing Bank of a
Letter of Credit, such Issuing Bank shall be deemed, without further action by any
party hereto, to have sold to each Bank, and each Bank shall be deemed, without
further action by any party hereto, to have purchased from the Issuing Bank, a
participation in such Letter of Credit and the related Letter of Credit Liabilities in
the proportion its Commifrnent bears to the Total Commitment.
(b) Methodfor Issuance; Terms; Extensions.
(i) The Borrower shall give the Issuing Bank notice at least
three Domestic Business Days (or such shorter notice as may be
acceptable to the Issuing Bank in its discretion) prior to the requested
issuance of a Letter of Credit (or, in the case of renewal or extension, prior
to the Issuing Bank's deadline for notice of nonextension) specifying the
date such Letter of Credit is to be issued, and describing the terms of such
Letter of Credit and the nature of the transactions to be supported thereby
(such notice, including any such notice grven in corurection with the
extension of a Letter of Credit, a "Notice of Issuance"). Upon receipt of a
Notice of Issuance, the Issuing Bank shall promptly notiff the
Administative Agent, and the Administrative Agent shall promptlynotify
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each Bank of the contents thereof and of the amount of such Bank's
participation in such Letter of Credit.
(ii) The obligation of any Issuing Bank to issue each Letter of
Credit shall, in addition to the conditions precedent set forth in Section
3.02,be subject to the conditions precedent that such Letter of Credit shall
be in such form and contain such terms as shall be reasonably satisfactory
to the Issuing Bank and that the Borrower shall have executed and
delivered such other customary instnrments and agreements relating to
such Letter of Credit as the Issuing Bank shall have reasonably requested;
provided, however, that any Issuing Bank may decline to issue any Letter
of Credit at such Issuing Bank's sole discretion (including, without
limitation, if such Issuing Bank's internal policies do not permit the
issuance of a letter of credit for the purposes for which such Letter of
Credit is being requested). The Borrower shall also pay to the Issuing
Bank for its own account issuance, drawing, amendment, settlement and
extension charges, if any, in the amounts and at the times as agreed
between the Borrower and the Issuing Bank.
(iiD The extension or renewal of any Letter of Credit shall be
deemed to be an issuance of such Letter of Credit, and if any Letter of
Credit contains a provision pursuant to which it is deemed to be extended
unless notice of termination is glven by the Issuing Bank, the Issuing Bank
shall timely give such notice of termination unless it has theretofore timely
received a Notice of Issuance and the other conditions to issuance of a
Letter of Credit have also theretofore been met with respect to such
extension. Each Letter of Credit shall expire at or before the close of
business on the date that is one year after such Letter of Credit is issued
(or, in the case of any renewal or extension thereof, one year after such
renewal or extension); provided that (i) a Letter of Credit may contain a
provision pursuant to which it is deemed to be extended on an annual basis
unless notice of termination is given by the Issuing Bank and (ii) in no
event will a Letter of Credit expire (including ptrsuant to a renewal or
extension thereof) on a date later than the fifth Business Day prior to the
Final Maturity Date.
(c) Payments; ReimbursementObltgations.
(i) Upon receipt from the beneficiary of any Letter of Credit of
any notice of a drawing under such Letter of Credit, the Issuing Bank shall
notiff the Administrative Agent and the Administrative Agent shall
promptly notify the Borrower and each other Bank as to the amount to be
paid as a result of such demand or drawing and the date such payment is to
be made by the Issuing Bank (the "Payment Date"). The Borrower shall
be irrevocably and unconditionally obligated to reimburse the Issuing
Bank for any amounts paid by the Issuing Bank upon any drawing under
any Letter of Credit, without presentment, demand, protest or other
formalities of any kind. Such reimbursement shall be due on the Payment
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Date; provided that no such payment shall be due from the Borrower any
earlier than the date of receipt by it of notice of its obligation to make such
payment (or, if such notice is received by the Borrower after l0:00 A.M.
(New York City time) on any date, on the next succeeding Domestic
Business Day); andprovidedfurther that if and to the extent any such
reimbtusement is not made by the Borrower in accordance with this clause
(i) or clause (ii) below on the Payment Date, then (irrespective of when
notice thereof is received by the Borrower), such Reimbursement
Obligation shall bear interest, payable on demand, for each day frorn and
including the Payment Date to but not including the date such
Reimbursement Obligation is paid in full at a rate per annum equal to the
rate applicable to Base Rate Loans for such day.
(ii) If the Commitments remain in effect on the Payment Date,
all such amounts paid by the Issuing Bank and remaining unpaid by the
Borrower after the date and time required by Section 2.17(c)(i) (a
"Reimbursement Obligation") shall, if and to the extent that the amount
of such Reimbursement Obligation would be permitted as a Borrowing
pursuant to Section 3.02, andunless the Borrower otherwise instructs the
Administrative Agent by not less than one Domestic Business Day's prior
notice, convert automatically to Base Rate Loans on the date such
Reimbursement Obligation arises. The Administrative Agent shall, on
behalf of the Borrower (which hereby irrevocably directs the
Administative Agent so to act on its behalf), give notice no later than
12:00 Noon (New York City time) on such date requesting each Bank to
make, and each Bank hereby agrees to make, a Base Rate Loan, in an
amount equal to such Bank'spro rata sharc of the Reimbursement
Obligation with respect to which such notice relates. Each Bank shall
make such Loan available to the Administative Agent at its address
refened to in Section 9.01 in immediately available funds, not later than
2:00 P.M. (New York City time), on the date specified in such notice. The
Administative Agent shall pay the proceeds of such Loans to the Issuing
Bank, which shall immediately apply such proceeds to repay the
Reimbursement Obli gation.
(iii) To the extent a Reimbursement Obligation is not funded by
a Bank pursuant to clause (ii) above, such Bank will pay to the
Adminisfrative Agent, for the account of the Issuing Bank, immediately
upon the Issuing Bank's demand at any time during the period
commencing after such Reimbursement Obligation arises until
reimbursement therefor in full by the Borrower, an amount equal to such
Barr/rr's pro rata share of such Reimbursement Obligation, together with
interest on such amount for each day from the date of the Issuing Bank's
demand for such payment (or, if such demand is made after 1:00 P.M.
(New York City time) on such date, from the next succeeding Domestic
Business Day) to the date of payment by such Bank of such amount at a
rate of interest per annum equal to the Federal Funds Rate for the first
three Domestic Business Days after the date of such dernand and
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thereafter at a rate per annum equal to the Base Rate for each additional
day. The Issuing Bank will pay to each Bank ratably all amounts received
from the Borrower for application in payment of its Reimbursement
Obligations in respect of any Letter of Credit, but only to the extent such
Bank has made payment to the Issuing Bank in respect of such Letter of
Credit pursuant hereto; provtded that in the event such payment received
by the Issuing Bank is required to be returned, such Bank will return to the
Issuing Bank any portion thereof previously disfributed to it by the Issuing
Bank.
(d) Obligations Absolute. The obligations of the Borrower and each
Bank under subsection (c) above shall be absolute, unconditional and irrevocable,
and shall be performed strictly in accordance with the terms of this Agreement,
under all circumstances whatsoever, including without limitation the following
circumstances:
(D any lack of validity or enforceability of this Agreement or
any Letter of Credit or any document related hereto or thereto;
(ii) any amendment or waiver of or any consent to departure
from all or any of the provisions of this Agreement or any Letter of Credit
or any document related hereto or thereto, provided by any party affected
thereby;
(iii) the use which maybe made of the Letter of Credit by, or
any acts or omission of a beneficiary of a Letter of Credit (or any Person
for whom the beneficiary may be acting);
(iv) the existence of any claim, set-off, defense or other rights
that the Borrower may have at any time against a beneficiary of a Letter of
Credit (or any Person for whom the beneficiary may be acting), any Bank
(including the Issuing Bank) or any other Person, whether in connection
with this Agreement or the Letter of Credit or any document related hereto
or thereto or any unrelated transaction;
(v) any statement or any other document presented under a
Letter of Credit proving to be forged, fraudulent or invalid in any respect
or any statement therein being untue or inaccurate in any respect
whatsoever;
(vi) payment under a Letter of Credit against presentation to the
Issuing Bank of documents that do not comply with the terms of such
Letter of Credit;
(vii) any termination of the Commitnents prior to, on or after
the Payment Date for any Letter of Credit, whether at the scheduled
termination thereof, by operation of Article 6 or otherwise; oro
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(viii) any other act or omission to act or delay of any kind by any
Bank (including the Issuing Bank), the Administrative Agent or any other
Person or any other event or circumstance whatsoever that might, but for
the provisions of this subsection (viii), constitute a legal or equitable
discharge of or defense to the Borrower's or the Bank's obligations
hereunder;
provided, that this Section 2.17(d) shall not limit the rights of the Borrower or any
Bank under Section 2.17(eXii).
(e) Indemnification;Expenses.
(i) The Borrower hereby indemnifies and holds harmless each
Bank (including each Issuing Bank) and the Administrative Agent from
and against any and all claims, damages, losses, liabilities, costs or
expenses which it may reasonably incur in connection with a Letter of
Credit issued pursuant to this Section 2.17;' provided that the Borrower
shall not be required to indemni& any Bank or the Administrative Agent,
for any claims, damages, losses, liabilities, costs or expenses, to the extent
found by a court of competent jurisdiction to have been caused by the
gross negligence or willful misconduct of such Person.
(ii) None of the Banks (including, subject to subsection (0
below, an Issuing Bank) nor the Administrative Agent nor any of their
officers or directors or employees or agents shall be liable or responsible,
by reason of or in connection with the execution and delivery or transfer
of or payment or failure to pay under any Letter of Credit, including
without limitation any of the circumstances enumerated in subsection (d)
above;provided that, notwithstanding Section 2.17(d), the Borrower shall
have a claim for direct (but not consequential) damage suffered by it, to
the extent finally determined by a court of competent jtrisdiction to have
been caused by (x) the Issuing Bank's gross negligence or willful
misconduct in determining whether documents presented under any Letter
of Credit complied with the terms of such Letter of Credit or (y) the
Issuing Bank's failure to pay under any Letter of Credit after the
presentation to it of documents stictly complying with the terms and
conditions of the Letter of Credit;providedfurther that each Bank shall
have a claim for direct (but not consequential) damage suffered by it, to
the exte,nt finally determined by a court of competent jurisdiction to have
been caused by the Issuing Bank's gross negligence or willful misconduct
in determining whether documents presented under any Letter of Credit
complied with the terms of such Letter of Credit. The parties agree that,
with respect to documents presented which appear on their face to be in
substantial compliance with the terms of a Letter of Credit, the Issuing
Bank may, in its discretion, either accept and make payment upon such
documents without responsibility for firttrer investigation, regardless of
any notice or information to the confrary, or refuse to accept and make
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payment upon such documents if such documents are not in sfrict
compliance with the terms of such Letter of Credit.
(iiD Nothing in this subsection (e) is intended to limit the
obligations of the Borrower under any other provision of this Agreement.
To the extent the Borrower does not indemnify an Issuing Bank as
required by this subsection, the Banks agree to do so ratably in accordance
with their Commitnents.
(0 Stop Issuance Notice.If the Required Banks reasonably determine at
any time that the conditions set forth in Section 3.02 would not be satisfied in
respect of a Borrowing at such time, then the Required Banks may request that the
Administrative Agent issue a "Stop Issuance Notice", and the Administative
Agent shall issue such notice to each Issuing Bank. Such Stop Issuance Notice
shall be withdrawn upon a determination by the Required Banks that the
circumstances giving rise thereto no longer exist. No Letter of Credit shall be
issued while a Stop Issuance Notice is in effect. The Required Banks may request
issuance of a Stop Issuance Notice only if there is a reasonable basis therefor, and
shall consider reasonably and in good faith a request from the Borrower for
withdrawal of the same on the basis that the conditions in Section 3.02 are
satisfied;provtded that the Adminishative Agent and the Issuing Banks may and
shall conclusively rely upon any Stop Issuance Notice while it remains in effect.
(g) If the terms and conditions of any form of letter of credit application
or other agreement submitted by the Borrower to or entered into by the Issuing
Bank relating to any Letter of Credit are not consistent with the terms and
conditions of this Agreement, the terms and conditions of this Agreement shall
control;provided that, to the extent the Issuing Bank so agrees in such other
documentation, its liabilities'and responsibilities in connection with a Letter of
Credit may be governed thereby rather than by subsection (e)(ii), but such
agreement by the Issuing Bank may not directly or indirectly alter the rights and
obligations of any other Bank under this Agreement.
ARTICLE 3
CoNornoNs
Section 3.01. Effectiveness. This Agreement shall become effective on
the date that each of the following conditions shall have been satisfied (or waived
in accordance with Section 9.05):
(a) receipt by the Administative Agent of counterparts of this
Agreement signed by each of the parties hereto (or, in the case of any party as to
which an executed counterpart shall not have been received, receipt by the
Administrative Agent in form satisfactory to it of facsimile, telex or other written
confirmation from such party of execution of a counterpart hereof by such party);
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(b) receipt by the Administative Agent of an opinion of Stoel Rives
LLP, counsel for the Borrower, dated the Effective Date, substantially in the form
of Exhibit E hereto and covering such additional matters relating to the
transactions contemplated hereby as the Required Banks may reasonably request;
(c) receipt by the Adminishative Agent of an opinion of Davis Polk &
Wardwell, special counsel for the Adminisfrative Agent, dated the Effective Date,
substantially in the form of Exhibit F hereto and covering such additional matters
relating to the transactions contemplated hereby as the Required Banks may
reasonably request;
(d) receipt by the Administrative Agent of any approvals,
authorizations, consents or orders of, or filings with, utility regulatory authorities
required with respect to this Agreement and the Notes including, without
limitation, the Washington Utilities and Transportation Commission, the Public
Service Commission of Utatr, the Idatro Public Utilities Commission, the Public
Utility Commission of Oregon, the Public Service Commission of Wyoming and
the Califomia Public Utilities Commission;
(e) receipt by the Administative Agent of all documents it may
reasonably request relating to the existence of the Borrower, the corporate
authority for and the validityof this Agreement and the Notes, and any other
matters relevant hereto, all in form and substance satisfactory to the
Administrative Agent;
(D receipt by the Adminisfrative Agent of evidence satisfactory to it
that (i) all commitments under the Existing Credit Agreement shall have been
terminated and (ii) all principal of any loans outstanding under, and all accrued
interest and fees under, the Existing Credit Agreement shall have been paid in
full; and
(g) receipt by the Adminishative Agent for the benefit of the Banks of
the up-front participation fees previously agreed to by the Borrowerl
provided that this Agreement shall not become effective or be binding on any
party hereto unless all of the foregoing conditions are satisfied or waived in
accordance with Section 9.05 not later than June 10, 2003. The Administrative
Agent shall promptly notiff the Borrower, the Banls and each other party to the
Existing Credit Agreement of the Effective Date, and such notice shall be
conclusive and binding on all parties hereto. Promptly after the Effective Date,
the Administrative Agent shall deliver to each Bank a copy of this Agreement
including photocopies of counterpart signature pages signed by each of the parties
hereto.
Section 3.02. Borrowings and Issuances of Letters of Credit. The
obligation of any Bank to make a Loan on the occasion of any Borrowing and the
obligation of any Issuing Bank to issue (including any renewal or extension of)
any Letter of Credit is subject to the satisfaction of the following conditions:
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(a) receipt by the Administrative Agent of (i) a Notice of Borrowing as
required by Section 2.02 or 2.03 or (ii) a Notice of Issuance as required by
Section 2.171/Jo), as the case may be;
(b) the fact that, immediately after such Bonowing or issuance, the
Total Outstanding Amount will not exceed the Total Commitment and the
aggregate amount of the Letter of Credit Liabilities shall not exceed
$200,000,000;
(c) the fact that, immediately prior to and after such Bonowing or
issuance, no Default shall have occurred and be continuing;
(d) the fact that the representations and warranties of the Borrower
contained in this Agreement shall be true on and as of the date of such Borrowing
or issuance; and
(e) in the case of any Borrowing subsequent to April 30,2004, or in the
case of any issuance of any Letter of Credit with an expiry date subsequent to
April 30, 2004, receipt by the Administative Agent of evidence satisfactory to it
that the Borrower has obtained a renewal of its authority from the Idatro Public
Utilities Commission as described in Exhibit E hereto.
Each Borrowing or issuance of any Letter of Credit hereunder shall be deemed to
be a representation and warranty by the Borrower on the date of such Borrowing
or issuance as to the facts specified in clauses (b), (c), (d) and (e) of this Section.
ARTICLE 4
RrpnrsnNre,TroNs AND WARRANTTES
The Borrower represents and warants that:
Section 4.01. Corporate Existence and Power. The Borrower is a
corporation duly incorporated and validly existing under the laws of Oregon, and
has all corporate powers and all material govemmental licenses, authorizations,
consents and approvals required to carry on its business as now conducted.
Section 4.02. Corporate and Governrnental Authorization; No
Contravention. The execution, delivery and performance by the Borrower of this
Agreement and the Notes are within the Borrower's corporate powers, have been
duly authorizedby all necessary corporate action, require no action by or in
respect of, or filing with, any govemmental body, agency or official (other than
such filings as have been made and remain effective and such approvals or orders
as have been obtained and are in fulI force and effect) and do not contravene, or
constitute a default under, any provision of applicable law or regulation or of the
articles of incorporation or by-laws of the Borrower or of any agreement,
judgment, injunction, order, decree or other inshument binding upon theo
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Borrower or to which any of its properties are subject, or result in the creation or
imposition of any Lien on any asset of the Borrower.
Section 4.03,' Binding Effect. This Agreernent constitutes a valid and
binding agreement of the Bonower and the Notes, if and when executed and
delivered in accordance with this Agreernent, will constitute valid and binding
obligations of the Borrower, in each case enforceable in accordance with their
respective terms except as (i) the foregoing may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally and (ii) rights of
acceleration and the availability of equitable remedies may be limited by
equitable principles of general applicability.
Section 4.04. Financial Information. (a) The consolidated balance sheet
of the Borrower and its Consolidated Subsidiaries as of March3l,2002 and the
related statements of consolidated income and retained earnings and of
consolidated cash flows for the fiscal year then ended, reported on by
PricewaterhouseCoopers LLP and set forth in the Borower's 2002 Form l0-K, a
copy of which has been delivered to each of the Banks, fairly present, in
conformity with generally accepted accounting principles, the consolidated
financial position of the Borrower and its Consolidated Subsidiaries as of such
date and their consolidated results of operations and cash flows for such fiscal
year.
(b) The balance sheet of the Borrower as of March 31,2002 and the
related statements of income and retained eamings and cash flows for the fiscal
year then ended, reflecting ownership of Subsidiaries on an equity basis and
reported on by PricewaterhouseCoopers LLP, copies of which have been
delivered to each of the Banks, fairly present, in conformity with generally
accepted accounting principles (except that investments in Subsidiaries are
accounted for and reported on the equity basis of accounting) which have been
applied on a basis consistent with the financial statements referred to in
subsection (a) of this Section, the financial position of the Borrower as of such
date and its results of operations and cash flows for such period.
(c) The unaudited condensed consolidated balance sheet of the
Borrower and its Consolidated Subsidiaries as of December 31,2002 and the
related unaudited condensed statements of consolidated eamings and consolidated
cash flows for the nine months then ended, set forth in the Borrower's quarterly
report on Form 10-Q for the Fiscal Quarter ended December 3l , 2002, a copy of
which has been delivered to each of the Banks, fairly present, in conformity with
generally accepted accounting principles applied on a basis consistent with the
financial statements referred to in subsection (a) of this Section, the consolidated
financial position of the Bonower and its Consolidated Subsidiaries as of such
date and their consolidated results of operations and cash flows for such nine
month period (subject to normal year-end adjusfrnents).
(d) Since Decernber 31,2002, there has been no change in the business,
financial position, results of operations or prospects of the Borrower which would
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materially adversely affect the ability of the Borrower to meet its commitnents
hereunder.
Section 4.05. Litigation. There is no action, suit or proceeding pending
against, or to the knowledge of the Borrower threatened against or affecting, the
Borrower before any court or arbiftator or any govemmental body, agency or
official (i) in which there is a reasonable possibility of an adverse decision which
would materially adversely affect the ability of the Borrower to meet its
commitnents hereunder (except as disclosed in the Borrower's 2002 Form l0-K
or the Borrower's quarterly reports on Form 10-Q for the Fiscal Quarters ended
June 30, 2002, September 30,2002 and December 31, 2002, as filed with the
Secwities and Exchange Commission) or (ii) which in any manner draws into
question the validity or enforceability of this Agreement or the Notes.
Section 4.06. Environmental Matters. The Borrower conducts in the
ordinary course of its business a review of the effect of existing Environmental
Laws on its business, operations and properties, and as a result thereof has
reasonably concluded that such Environmental Laws are unlikely to have a
material adverse effect on the ability of the Borrower to meet its commitments
hereunder.
Section 4.07. Conpliance with ENSA. Each member of the ERISA
Group has fulfilled its obligations under the minimum funding standards of
ERISA and the Intemal Revenue Code with respect to each Plan and is in
compliance in all material respects with the presently applicable provisions of
ERISA and the Intemal Revenue Code with respect to each Plan. No member of
the ERISA Group has (i) failed to make any contribution or payment to any Plan
or Multiemployer Plan, or made any amendment to any Plan, which has resulted
or would result in the imposition of a Lien or the posting of a bond or other
security under ERISA or the Internal Revenue Code or (ii) incuned any liability
under Title IV of ERISA other than a liability to the PBGC for premiums under
Section 4007 of ERISA, except where such failure or incurrence would not have a
material adverse effect on the ability of the Borrower to meet its commitments
hereunder.
Section 4.08. Taxes. The Borrower has filed all United States Federal
income ta:r retums and all other material ta:r returns which are required to be filed
by it and has paid all ta:res due pursuant to such returns or pursuant to any
assessment received by the Borrower. The charges, accruals and reserves on the
books of the Borrower in respect of ta:res or other governmental charges are, in
the reasonable opinion of the Borrower, adequate.
Section 4.09. Not an Investment Company. Tlte Borrower is not an
"inyestment company" within the meaning of the Investment Company Act of
1940, as amended.
Section 4.10. Insurance. Tlte properties and operations of the Borrower
of a character usually insured by Persons of established reputation engaged in the
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same or a similar business, similarly situated, are adequately insured both as to
type of insurance and amount by financially sound and reputable insruers, and the
Borrower carries with such insurers adequate other insurance, including, without
limitation, public liability and product liability insurance, as is usually carried by
Persons of established reputation engaged in the sarne or a similar business,
similarly situated.
ARTICLE 5
CowNeNrs
The Borrower agrees that, so long as any Bank has any Commitment
hereunder or any Loan or Letter of Credit remains outstanding or any amount
payable hereunder remains unpaid:
Section 5.01. Information. The Bonower will deliver to each of the
Banks:
(a) as soon as available and in any event within 120 days after the end
of each fiscal year of the Borrower, a consolidated balance sheet of the Borrower
and its Consolidated Subsidiaries as of the end of such fiscal year and the related
statements of consolidated income and retained eamings and cash flows for such
fiscal year, setting forth in each case in comparative form the figures for the
previous fiscal year, all reported on in a manner acceptable to the Securities and
Exchange Commission by PricewaterhouseCoopers LLP or other independent
public accountants of nationally recognized standing;
(b) as soon as available and in any event within 120 days after the end
of each fiscal year of the Borrower, a balance sheet of the Borrower reflecting
ownership of Subsidiaries on the equity method as of the end of such fiscal year
and the related statements of the Borrower's income and retained eamings and
cash flows for such fiscal period reflecting ownership of Subsidiaries on the
equity method, setting forth in each case in comparative form the figures for the
previous fiscal year, all reported on by PricewaterhouseCoopers LLP or other
independent public accountants of nationally recognized standing;
(c) as soon as available and in any event within 60 days after the end of
each of the first three quarters of each fiscal year of the Borrower, a consolidated
balance sheet of the Borrower and its Consolidated Subsidiaries as of the end of
such quarter, the related statement of consolidated income and retained earnings
for such quarter and for the portion of the Borrower's fiscal year ended at the end
of such quarter and the related statement of cash flows for the portion of the
Borrower's fiscal year ended at the end of such quarter, setting forth in each case
(except for the consolidated balance sheet of the Borrower and its Consolidated
Subsidiaries as of the end of such quarter) in comparative form the figures for the
corresponding quarter and the corresponding portion of the Borower's previous
fiscal year, all certified (subject to normal year-end adjustments) as to fairness of
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presentation, generally accepted accounting principles and consistency by an
Authorized Officer;
(d) as soon as available and in any event within 60 days after the end of
each of the first three quarters of each fiscal year of the Borrower, a balance sheet
of the Borrower reflecting ownership of Subsidiaries on the equity method as of
the end of such quarter and the related statements of the Borrower's income and
retained earnings and cash flows for the portion of the Borrower's fiscal year
ended at the end of such quarter reflecting ownership of Subsidiaries on the equity
method, setting forth in each case (except for the balance sheet of the Borrower
reflecting ownership of Subsidiaries on the equity method as of the end of such
quarter) in comparative form the figures for the corresponding quarter and the
corresponding portion of the Borrower's previous fiscal year, all certified (subject
to normal year-end adjustnents) as to fairness of presentation, generally accepted
accounting principles (except that investments in Subsidiaries are accounted for
and reported on the equity basis of accounting) and consistency by an Authorized
Officer;
(e) simultaneously with the delivery of each set of financial statements
referred to in clauses (a) through (d) above, a certificate of an Authorized Officer
(i) setting forth in detail satisfactory to the Administative Agent the calculations
required to establish whether the Borrower was in compliance with the
requirements of Sections 5.05, 5.06 and 5.070) on the date of such financial
statements and (ii) stating whether any Default exists on the date of such
certificate and, if any Default then exists, setting forttr the details thereof and the
action which the Borrower is taking or proposes to take with respect thereto;
(0 simultaneouslywith the delivery of each set of financial statements
referred to in clauses (a) and (b) above, a statement of the firm of independent
public accountants which reported on such statements (i) whether anything has
come to their attention to cause them to believe that any Default existed on the
date of such statements and (ii) confirming the calculations set forttr in the
officer's certificate delivered simultaneously therewith pursuant to clause (e)
above;
(g) forthwith upon the occurence of any Default, a certificate of an
Authorized Officer setting forth the details thereof and the action which the
Borrower is taking or proposes to take with respect thereto;
O) promptly upon the mailing thereof to the shareholders of the
Borower generally, copies of all financial statements, reports and proxy
statements so mailed;
(i) promptly upon the filing thereof, copies of all registration statements
(other than the exhibits thereto and any registration statements on Form S-8 or its
equivalent) and reports on Forms l0-K lO-Q and 8-K (or their equivalents) which
the Borrower shall have filed with the Securities and Exchange Commission;
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(i) if and when any member of the ERISA Group (i) gives or is required
to give notice to the PBGC of any "reportable evenf'(as defined in Section 4043
of ERISA), for which the requirement of notice to the PBGC within 30 days has
not been waived, with respect to any Plan which might constitute grounds for a
termination of such Plan under Title IV of ERISA, or knows that the plan
adminisfiator of any Plan has given or is required to give notice of any such
reportable event, a copy of the notice of such reportable event grven or required to
be given to the PBGC; (ii) receives notice of complete orpartial withdrawal
liability under Title IV of ERISA in excess of $10,000,000 or notice that any
Multiemployer Plan is in reorganization, is insolvent or has been terminated,
which reorganization, insolvency or termination is reasonably expected to result
in a current payment obligation of one or more members of the ERISA Group in
excess of $10,000,000, a copy of such notice; (iii) receives notice from the PBGC
under Title IV of ERISA of an intent to terminate, impose liability (other than for
premiums under Section 4007 of ERISA) in respect of, or appoint a tustee to
administer any Plan, a copy of such notice; (iv) applies for a waiver of the
minimum funding standard under Section 412 of the Intemal Revenue Code, a
copy of such application; (v) gives notice of intent to terminate any Plan under
Section aO 1(c) of ERISA, a copy of such notice and other information filed with
the PBGC; (vi) gives notice of withdrawal from any Plan pursuant to Section
4063 of ERISA, a copy of such notice; or (vii) fails to make any payment or
contribution to any Plan or Multiemployer Plan, or makes any amendment to any
Plan, which has resulted or would result in the imposition of a Lien or the posting
of a bond or other security, a certificate of an Authoized Officer setting forttr
details as to such occurence and action, if any, which the Borrower or applicable
member of the ERISA Group is required or proposes to take; and
(k) from time to time such additional information regarding the
financial position or business of the Borrower as the Administative Agent, at the
request of any Bank, may reasonably request.
Section 5.02. Maintenance of Property; Insurance. The Borrower will
keep all property useful and necessary in its business in good working order and
condition, ordinary wear and tear excepted; will maintain with financially sound
and reputable insurance companies, insurance on all its property in at least such
amounts and against at least such risks as are usually insured against by
companies of established repute engaged in the same or a similar business; and
will promptly fumish to the Banks such information as to the insurance carried as
may be reasonably requested in writing by the Adminishative Ag6nt.
Section 5.03. Conduct of Business and Maintenance of Existence. The
Borrower will preserve, renew and keep in full force and effect its corporate
existence and its rights, privileges and franchises necessary or desirable in the
conduct of its business.
Section 5.04. Compliance with Laws. The Borrower will comply in all
respects with all applicable laws, ordinances, rules, regulations and requirements
of governmental authorities (including, without limitation, Environmental Laws
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and ERISA and the rules and regulations thereunder) except where the necessity
of compliance therewith is contested in good faith by appropriate proceedings or
where non-compliance therewith would not have a material adverse effect on the
ability of the Borrower to meet its commitnents hereunder.
Section 5.05. Total Debt. Total Debt of the Borrower will at no time
exceed 60% of the Total Capitalization of the Borrower.
Section 5.06. Interest Coverage Ratio. At the end of each Fiscal Quarter,
the Interest Coverage Ratio will not be less than200%.
Section 5.07. Negative Pledge. The Borrower will not create, assume or
suffer to exist any Lien on any asset now owned or hereafter acquired by it,
except:
(a) the Lien of the Umbrella Mortgage;
O) any Lien that qualifies as an "Excepted Encumbrance" under
Section 1.06 of the Umbrella Mortgage,provided that foreclosure of any Liens for
ta:res, assessments or other governmental charges so qualiffing shall have been
effectively stayed;
(c) any Lien on the Borower's interest in facilities securing Debt
incurred or assumed for the purpose of financing all or any part of the cost of
acquiring such facilities, provided that the interest on such Debt is exempt from
tax under the lnternal Revenue Code as in effect when such Debt is incured or
assumed;
(d) any Lien on the Borrower's interest in Pollution Bonds or cash or
cash equivalents sectring (i) the obligation of the Borrower to reimburse the
issuer of a Pollution LC for a drawing on such Pollution LC for the purpose of
purchasing Pollution Bonds or (ii) the obligation of the Borrower to reimburse or
repay amounts advanced under any facility entered into to provide liquidity or
credit support for any issue of Pollution Bonds;
(e) any Lien on any asset securing Debt of the Borrower incurred or
assumed for the purpose of financing all or any part of the cost of acquiring such
asset, provided that such Lien attaches to such asset concurrently with or within
90 days after the acquisition thereof;
(0 any Lien on any asset of.any corporation existing at the time such
corporation is merged or consolidated with or into the Borrower and not created
in contemplation of such event;
(g) any Lien existing on any asset prior to the acquisition thereof by the
Borrower and not created in contemplation of such acquisition;
(h) any Lien arising out of the refinancing, extension, renewal or
refunding of any Debt of the Borrower secured by any Lien permitted by any of
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the foregoing clauses (b) through (g), inclusive, of this Section,provided that such
Debt is not increased and is not secured by any additional assets;
(i) Liens incidental to the conduct of its business or the ownership of its
assets which (i) do not secure Debt or obligations under Hedging Agreements, (ii)
do not s@ure any single obligation (or series of related obligations) in an arnount
exceeding $100,000,000 and (iii) do not in the aggregate materially detact from
the value of its assets or materially impair the use thereof in the operation of its
business;
0) Liens on cash and cash equivalents securing obligations under
Hedging Agreements; provided that the aggregate amount of cash and cash
equivalents subject to Liens permitted by this clause (i) shall at no time exceed
$75,000,000;
(k) Liens not otherwise permitted by the foregoing clauses of this
Section securing Debt of the Borrower and Liens not permitted by clause o
above on cast and cash equivalents securing obligations under Hedging
Agreements; provided that the sum of (i) the aggregate principal amount of Debt
secured by such Liens and (ii) the aggregate amount of cash and cash equivalents
subject to Liens not permitted by clause O above securing obligations under
Hedging Agreements shall not at any time exceed 7.5Yo of Tangible Net Worth;
0) the right of the counterparty to two or more Hedging Agreements
with the Borrower to close out such Hedging Agreements if applicable margin or
other requirements are not met and apply any proceeds thereof to any resulting
balance due;
(m) Liens on cash and letters of credit securing obligations under
Electricity Forward Contracts; and
(n) the right of the counterparty to two or more Electicity Forward
Contracts to close out such Electricity Forward Contracts if applicable margin or
other requirements are not met and apply any proceeds thereof to any resulting
balance due.
. Section 5.08. Consolidations, Mergers and Sales of Assets. The Borrower
will not, without the prior written consent of the Required Banks:
(i) consolidate or merge with or into any other Person;
provided that the Borrower may merge with another Person if (x) the
Borrower is the surviving corporation and (y) on the effective date of such
consolidation or merger, and immediately after gtving effect thereto, no
Default shall have occurred or be continuing, or
(ii) sell, lease or otherwise fransfer, directly or indirectly, all or
substantially all of the assets of the Borrower to any other Person.
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Section 5.09. Use of Proceeds. The proceeds of the Loans made and the
Letters of Credit issued under this Agreernent will be used by the Borrower for its
general corporate purposes. None of such proceeds will be used, directly or
indirectly, for the pwpose, whether immediate, incidental or ultimate, of buying
or carrying any "margin stock" within the meaning of Regulation U.
Section 5.10. Guarantees. The Borrower will not enter into any
Guarantee of any Debt or other obligation of any Subsidiary, except (i) any such
Guarantees of Debt or other obligations that (a) have been approved by
appropriate orders from the utility regulatory authorities to which the Borrower is
at the time subject and (b) pertain solely to Debt or other obligations substantially
all of the net proceeds of which are loaned by such Subsidiary to the Borrower
and (ii) any such Guarantees of other obligations which Guarantees are not
material to the financial position of the Borrower either individually or in the
aggregate.
ARTICLE 6
Dnreur.rs
Section 6.01. Events of Defaulr. If one or more of the following events
("Events of Default') shall have occured and be continuing:
(a) the Borrower shall fail to pay when due any principal of any Loan or
any Reimbursement Obligation or shall fail to pay, within five days of the due
date thereot any interest, commitnent fees or facility fees payable hereunder;
O) the Borrower shall fail to pay any other amount claimed by one or
more Banks under this Agreement within five days of the due date thereof, unless
(i) such claim is disputed in good faith by the Borrower, (ii) such unpaid claimed
amount does not exceed $100,000 and (iii) the aggregate of all such unpaid
claimed amounts does not exceed $300,000;
(c) the Borrower shall fail to observe or perform any covenant
contained in Sections 5.05 to 5.10, inclusive;
(d) the Borrower shall fail to observe or perform any covenant or
agreement contained in this Agreement (other than those covered by clause (a),
(b) or (c) above) for 15 days after written notice thereof has been given to the
Borrower by the Administrative Agent at the request of any Bank;
(e) any representation, waranty, certification or statement made by the
Borrower in this Agreement or in any certificate, financial statement or other
document delivered pursuant to this Agreement shall prove to have been incorect
in any material respect when made (or deemed made);
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(0 the Borrower shall fail to make any payment in respect of any
Material Debt (other than the Loans or anyReimbursernent Obligation) or
Material Hedging Obligations when due or within any applicable grace period;
(g) any event or condition shall occur which results in the acceleration
of the maturity of any Material Debt of the Borrower or enables the holder of such
Material Debt or any Person acting on such holder's behalf to accelerate the
mattuity thereof;
O) the Borrower shall conrmence a voluntary case or other proceeding
seeking liquidation, reorganization or other relief with respect to itself or its debts
under any bankruptcy, insolvency or other similar law now or hereafter in effect
or seeking the appointment of a trustee, receiver, liquidator, custodian or other
similar official of it or any substantial part of its property; or shall consent to any
such relief or to the appointment of or taking possession by any such official in an
involuntary case or other proceeding commeirced against it, or shall make a
general assignment for the benefit of creditors, or shall fail generally to pay its
debts as they become due, or shall take any corporate action to authorize any of
the foregoing;
(i) an involuntary case or other proceeding shall be commenced against
the Borrower seeking liquidation, reorganization or other relief with respect to it
or its debts under any bankruptcy, insolvency or other similar law now or
hereafter in effect or seeking the appointnent of a trustee, receiver, liquidator,
custodian or other similar official of it or any substantial part of its property, and
such involuntary case or other proceeding shall remain undismissed and unstayed
for a period of 60 days; or an order for relief shall be entered against the Borrower
under the federal banlcruptcy laws as now or hereafter in effect;
() the Borrower or any member of the ERISA Group shall fail to pay
when due an amount or amounts aggregating in excess of $25,000,000 which it
shall have become liable to pay to the PBGC or to a Plan under Title tV of
ERISA; or notice of intent to terminate a Material Plan shall be filed under Title
IV of ERISA by any member of the ERISA Group, any plan adminishator or any
combination of the foregoing; or the PBGC shall institute proceedings under Title
IV of ERISA to terminate, to impose liability in excess of $25,000,000 (other than
for premiums under Section 4007 of ERISA) in respect of, or to cause a trustee to
be appointed to administer any Material Plan or a proceeding shall be instituted
by a fiduciary of any Multiemployer Plan against any member of the ERISA
Group to.enforce Section 515 or a2l9(cX5) of ERISA in respect of an amount or
amounts aggregating in excess of $25,000,000, and such proceeding shall not
have been dismissed within 30 days thereafter; or a condition shall exist by reason
ofwhich the PBGC would be entitled to obtain a decree adjudicating that any
Material Plan must be terminated; or there shall occur a complete or partial
withdrawal from, or a default, within the meaning of Section a2l9(c)(5) of
ERISA, with respect to, one or more Multiemployer.Plans which would cause one
or more members of the ERISA Group to incur a current payment obligation in
excess of $25,000,000;
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(k) a judgment or order for the payment of money in excess of
$25,000,000 shall be rendered against the Bonower and such judgment or order
shall continue unsatisfied and unstayed for a period of 30 days; or
0) ScottishPower shall fail to own (directly or indirectly through one or
more Subsidiaries) at least 80% of the outstanding shares of common stock of the
Borrower; any person or group of persons (within the meaning of Section 13 or 14
of the Securities Exchange Act of 1934, as amended) shall have acquired
beneficial ownership (within the meaning of Rule 13d-3 promulgated by the
Securities and Exchange Commission under said Act) of 35% or more of the
outstanding shares of common stock of ScottishPower; or, during any period of
14 consecutive calendar months, individuals who were directors of the Borrower
on the first day of such period and any new director whose election by the board
of directors of the Borrower or nomination for election by the Borrower's
shareholders was approved by a vote of at least a majority of the directors then
still in office who either were directors at the beginning of the 14 month period or
whose election or nomination for election was previously so approved, shall cease
to constitute a majority of the board of directors of the Borrower;
then, and in every such event, the Adminisfiative Agent shall (i) if requested by
the Required Banks, by notice to the Borrower terminate the Commitments and
the obligation of each Bank to make Loans hereunder and the obligation of each
Issuing Bank to issue any Letter of Credit hereunder and they shall thereupon
terminate, and (ii) if requested by the Required Banks, by notice to the Borrower
declare the Loans (together with accrued interest thereon) and any outstanding
Reimbursement Obligations in respect of any drawing under a Letter of Credit to
be, and the same shall thereupon become, immediately due and payable without
presenfinent, demand, protest or other notice of any kind, all of which are hereby
waived by the Borower;provided that in the case of any of the Events of Default
specified in clause O) or (i) above with respect to the Borrower, without any
notice to the Borrower or any other act by the Administrative Agent or the Banks,
the Commitments shall thereupon terminate and the Loans (together with accrued
interest thereon) and any outstanding Reimbursement Obligations in respect of
any drawing under a Letter of Credit shall become immediately due and payable
without presentnent, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower.
Section 6.02. Notice of Default. The Adminishative Agent shall give
notice to the Borrower under Section 6.01(d) promptly upon being requested to do
.so by any Bank and shall thereupon notiff all the Banks thereof.
Section 6.03. Cash Cover. The Borrower agrees, in addition to the
provisions in Section 6.01, that upon the occrurence and during the continuance of
any Event of Default, it shall, if requested by the Administrative Agent upon the
instruction of the Required Banks or any Issuing Bank having an outstanding
Letter of Credit, pay to the Adminishative Agent an amount in immediately
available funds (which funds shall be held as collateral pursuant to arangements
satisfactory to the Adminisfrative Agent) equal to the aggregate amount available
(NY) u675lt59/CA03/ce"364dey.2003.cxccuriondoc
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for drawing under all Letters of Credit outstanding at such time (or, in the case of
a request by an Issuing Bank, all such Letters of Credit issued by it), provided
that, upon the occurrence of any Event of Default specified in clause O) or (i)
above with respect to the Borower, and on the Termination Date, the Borrower
shall pay such amount forthwith without any notice or demand or any other act by
the Administrative Agent, any Issuing Bank or any Bank.
ARTICLE 7
Tm AounusrRATIVE Acsl.tr
Section 7.01. Appointment and Authorization. Each Bank irrevocably
appoints and authorizes the Administative Agent to take such action as agent on
its behalf and to exercise such powers under this Agreement and the Notes as axe
delegated to the Administrative Agent by the terms hereof or thereof, together
with all such powers as are reasonably incidental thereto.
Section 7.02. Administrative Agent and Afiliates. JPMorgan Chase Bank
shall have the same rights and powers under this Agreement as any other Bank
and may exercise or refrain from exercising the same as though it were not the
Administrative Agent, and JPMorgan Chase Bank and its affiliates may accept
deposits from, lend money to, and generally engage in any kind of business with
the Borrower or any Subsidiary or affiliate of the Borrower as if it were not the
Administrative Agent hereunder.
Section 7.03. Action by Administrattve Agent. The obligations of the
Administrative Agent hereunder are only those expressly set forth herein.
Without limiting the generality of the foregoing, the Adminishative Agent shall
not be required to take any action with respect to any Default, except as expressly
provided in Article 6.
Section 7.04. Consultation with Experts. The AdminisEative Agent may
consult with legal counsel (who may be counsel for the Borrower), independent
public accountants and other experts selected by it in good faith and shall not be
liable for any action taken or omitted to be taken by it in good faith in accordance
with the advice of such counsel, accountants or experts.
Section 7.05. Liabtlity of Administrative Agent. Neither the
Administrative Agent nor any of its affiliates nor any of their respective directors,
officers, agents or employees shall be liable for any action taken or not taken by it
in connection herewith (i) with the consent or at the request of the Required
Banks or (ii) in the absence of its own gross negligence or willful misconduct.
Neither the Administrative Agent nor any of its affiliates nor any of their
respective directors, officers, agents or employees shall be responsible for or have
any duty to ascertain, inquire into or verify (i) any statement, warranty or
representation made in connection with this Agreement or any Borrowing or
issuance of a Letter of Credit hereunder; (ii) the performance or obserrrance of
any of the covenants or agreements of the Borrower; (iii) the satisfaction of any
(NY) 04575/t59lcA03/ca.364dry.2o3.cxecution doc
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condition specified in Article 3, except receipt of items required to be delivered to
the Administrative Agent; or (iv) the validity, effectiveness or genuineness of this
Agreement, the Notes, the Letters of Credit or any other instrument or writing
furnished in connection herewith. The Administative Agent shall not incur any
liability by acting in reliance upon any notice, consent, certificate, statement, or
other writing (which may be a bank wire, telex, facsimile fransmission or similar
writing) believed by it in good faith to be genuine or to be signed by the proper
party or parties.
Section 7.06. Indemnification. Each Bank shall, ratably iu accordance
with its Commitnent, indemniff the Adminisfrative Agent and any Issuing Bank,
their affiliates and their respective directors, officers, agents and employees (to
the extent not reimbursed by the Borrower) against any cost, expense (including
counsel fees and disbursements), claim, demand, action, loss or liability (except
such as result from such indemnitees' gross negligence or willful misconducQ that
such indemnitees may suffer or incur in connection with this Agreement or any
Letter of Credit or any action taken or omitted by such indernnitees hereunder or
thereunder.
Section 7.07. Credit Decision. Each Bank acknowledges that it has,
independently and without reliance upon the Administative Agent or any other
Bank, and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Bank also acknowledges that it will, independently and without
reliance upon the Administrative Agent or any other Bank, 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 any action rurder this
Agreement.
Section 7.08. Successor Administrative Agent. T\e Administative Agent
may resign at any time by giving written notice thereof to the Banks and the
Borrower. Upon any such resignation, the Required Banks (with the consent of
the Borrower so long as no Event of Default exists) shall agree upon and appoint
a successor Administrative Agent. If no successor Adminisfiative Agent shall
have been so appointed by the Required Banks, and shall have accepted such
appointnent, within l0 Domestic Business Days after the retiring Administrative
Agent gives notice of resignation, then the retiring Administrative Agent may, on
behalf of the Banks, appoint a successor Administrative Agent, which shall be a
commercial bank organizedor licensed under the laws of the United States of
America or of any State thereof and having a combined capital and strplus of at
least $500,000,000. Upon the acceptance of its appoinfinent as Adminisfrative
Agent hereunder by a successor Administrative Agent, such successor
Administrative Agent shall thereupon succeed to and become vested with all the
rights and duties of the retiring Adminisfiative Agent, and the retiring
Administative Agent shall be discharged from any subsequent duties and
obligations hereunder. After any retiring Administrative Agent's resignation
hereunder as Administrative Agent, the provisions of this Article shall inure to its
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benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent.
Section 7 .09. Administrative Agent's Fee, T}rre Borrower shall pay to the
Administrative Agent for its own account fees in the amounts and at the times
previously agreed upon between the Borrower and the Administative Agent.
Section 7.10. Sydtcation Agent. The Syndication Agent, in such
capacity, shall have no duty or liability whatsoever under this Agreement.
ARTICLE 8
CslNce nq CrRcuusrANcEs
Section 8.01. Basrs for Determining Interest Rate Inadequate or Unfatr.
If on or prior to the first day of any Interest Period for any Euro-Dollar Loans or
Competitive Bid LIBOR Loans:
(a) the Administrative Agent determines (which determination shall be
conclusive absent manifest error) that adequate and reasonable means do not exist
for ascertaining the London Interbank Offered Rate, as applicable, for such
lnterest Period, or
O) in the case of Euro-Dollar Loans, the Required Banks advise the
Administrative Agent that the London krterbank Offered Rate as determined by
the Adminisfrative Agent will not adequately and fairly reflect the cost to such
Banks of funding their Euro-Dollar Loans for such Interest Period,
the Administrative Agent shall forthwith give notice thereof to the Borrower and
the Banks, whereupon until the Administative Agent notifies the Borrower that
the circumstances glving rise to such suspension no longer exist, (i) the
obligations of the Banks to make Eruo-Dollar Loans, or to continue or convert
outstanding Loans as or into Euro-Dollar Loans, shall be suspended and (ii) each
outstanding Euro-Dollar Loan shall be converted into a Base Rate Loan on the
last day of the then current Interest Period applicable thereto. Unless the
Borrower notifies the Administrative Agent at least two Domestic Business Days
before the date of any Fixed Rate Borrowing for which a Notice of Borrowing has
previously been given that it elects not to borrow on such date, (i) if such Fixed
Rate Borrowing is a Euro-Dollar Borrowing, such Borrowing shall instead be
made as a Base Rate Borrowing and (ii) if such Fixed Rate Bonowing is a
Competitive Bid LIBOR Borrowing, the Competitive Bid LIBOR Loans
comprising such Borrowing shall bear interest for each day from and including
the first day to but excluding the last day of the Interest Period applicable thereto
at the Base Rate for such day.
Section 8.02. Illegality. (a) If, on or after the date of this Agreement, the
adoption of any applicable law, rule or regulation, or any change therein, or any
change in the interpretation or adminishation thereof by any govemmental
(Ny) u675l159/cAo3ic8.364day.2oo3.cxccutiondoc
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authority, cenhal.bank or comparable agency charged with the interpretation or
administation thereofi or compliance by any Bank (or its Euro-Dollar Lending
Office) with any request or directive (whether or not having the force of law) of
any such authority, cenhal bank or comparable agency shall make it unlawful or
impossible for any Bank (or its Euro-Dollar Lending Office) to make, maintain or
fund its Euro-Dollar Loans and such Bank shall so notiff the Administrative
Agent, the Administative Agent shall forthwith give notice thereof to the other
Banks and the Borrower, whereupon until such Bank notifies the Borrower and
the Administrative Agent that the circumstances giving rise to such suspension no
longer exist, the obligation of such Bank to make Euro-Dollar Loans, or to
convert outstanding Loans into Euro-Dollar Loans or continue outstanding Loans
as Euro-Dollar Loans, shall be suspended. Before giving any notice to the
Administrative Agent pursuant to this Section, such Bank shall designate a
different Euro-Dollar Lending Office if such designation will avoid the need for
giving such notice and will not, in the judgment of such Bank, be othenvise
disadvantageous to such Bank.
(b) If such notice is given, each Euro-Dollar Loan of such Bank then
outstanding shall be converted to a Base Rate Loan either (i) on the last day of
the then current Interest Period applicable to such Euro-Dollar Loan if such Bank
may lawfully continue to maintain and fund such Loan as a Euro-Dollar Loan to
such day or (ii) immediately if such Bank shall determine that it may not lawfully
continue to maintain and fund such Loan as a Euro-Dollar Loan to such day.
Interest and principal on any such Base Rate Loan shall be payable on the same
dates as, and on a pro rata basis with,'the interest and principal payable on the
related Euro-Dollar Ioans of the other Banks.
Section 8.03. Inteased Cost and Reduced Return. (a) If on or after (x)
the date of this Agreernent, in the case of any Committed loan or Letter of Credit,
or any obligation to make Committed Loans or issue or participate in any Letters
of Credit or (y) the date of the related Competitive Bid Quote, in the case of any
Competitive Bid Loan, the adoption of any applicable law, rule or regulation, or
any change therein, or any change in the interpretation or administration thereof
by any governmental authority, central bank or comparable agency charged with
the interpretation or adminisfration thereof, or compliance by any Bank (or its
Applicable Lending Office) or any Issuing Bank with any request or directive
(whether or not having the force of law) of any such authority, cental bank or
comparable agency, shall impose, modiS or deem applicable any reserve
(including, without limitation, any such requirement imposed by the Board of
Govemors of the Federal Reserve System, but excluding with respect to any
Euro-Dollar Loan any such requirement included in an applicable Euro-Dollar
Reserve Percentage), special deposit, insurance assessment or similar requirement
against assets of, deposits with or for the account o{, or credit (including Letters
of Credit and participation therein) extended by, any Bank (or its Applicable
Lending Office) or any Issuing Bank or shall impose on any Bank (or its
Applicable Lending Office) or any Issuing Bank or on the London interbank
market any other condition affecting its Fixed Rate Loans or the Letters or Credit,
its Note or its obligation to make Fixed Rate Loans or its obligations hereunder in
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respect of Letters of Credit; and the result of any of the foregoing is to increase
the cost to such Bank (or its Applicable Lending Office) or such Issuing Bank of
making or rnaintaining any Fixed Rate Loan or of issuing or participating in any
Letters of Credit, or to reduce the amount of any sum received or receivable by
such Bank (or its Applicable Lending Office) or such Issuing Bank under this
Agreement or under its Note or Letters of Credit with respect thereto, by an
amount deemed by such Bank or such Issuing Bank to be material, then, within 15
days after demand by such Bank or such Issuing Bank (with a copy to the
Administrative Agent), the Borrower shall pay to such Bank or such Issuing Bank
such additional amount or amounts as will compensate such Bank or such Issuing
Bank for such increased cost or reduction.
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(b) If any Bank or any Issuing Bank shall have deterrrined that, after the
date of this Agreement, the adoption of any applicable law, rule or regulation
regarding capital adequacy, or any change therein, or any change in the
interpretation or administration thereofby any govemmental authority, cental
bank or comparable agency charged with the interpretation or administation
thereof, or any request or directive regarding capital adequacy (whether or not
having the force of law) of any such authority, central bank or comparable agency
(including any determination by any such authority, cental bank or comparable
agency that, for purposes of capital adequacy requirements, the Commitrnents
hereunder do not constitute commitnents with an original maturity of less than
one year), has or would have the effect of reducing the rate of retum on capital of
such Bank or such Issuing Bank (or any Parent of such Bank or Issuing Bank) as a
consequence of such Bank's or such Issuing Bank's obligations hereunder to a
level below that which such Bank or such Issuing Bank (or any Parent of such
Bank or Issuing Bank) could have achieved but for such adoption, change, request
or directive (taking into consideration its policies with respect to capital
adequacy) by an amount deemed by such Bank or such Issuing Bank to be
material, then from time to time, within 15 days after demand by such Bank or
such Issuing Bank (with a copy to the Administative Agent), the Borrower shall
pay to such Bank or such Issuing Bank such additional amount or amounts as will
compensate such Bank or such Issuing Bank (or any Parent of such Bank or
Issuing Bank) for such reduction. Notwithstanding the foregoing, the Borrower
shall only be obligated to compensate such Bank or such Issuing Bank for any
amount arising or accruing during (i) the period commencing 90 dap prior to the
date on which such Bank or such Issuing Bank gave notice to the Borrower
pursuant to Section 8.03(c) of the event entilling such Bank or such Issuing Bank
to such compensation and (ii) any period during which, because of the retroactive
application of such statute, regulation or other such basis, such Bank or such
Issuing Bank did not know that such amount would arise or accrue.
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(c) Each Bank and each Issuing Bank will promptly notiff the Borrower
and the Administative Agent of any event of which it has knowledge, occurring
after the date of this Agreement, which will entitle such Bank or such Issuing
Bank to compensation pursuant to this Section and will designate a different
Applicable Lending Office if such designation will avoid the need for, or reduce
the amount o{, such compensation and will not, in the judgment of such Bank or
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such Issuing Bank, be othenvise disadvantageous to such Bank or such Issuing
Bank. A certificate of any Bank or any Issuing Bank claiming compensation
under this Section and seffing forth the additional amount or amounts to be paid to
it hereunder shall be conclusive in the absence of manifest error. In determining
such amount, such Bank or such Issuing Bank may use any reasonable averaging
and attribution methods.
Section 8.04. Taxes. (a) For purposes of this Section 8.04, the following
terms have the following meanings:
"Taxes" means any and all present or futue taxes, duties, levies, imposts,
deductions, charges or withholdings with respect to any payment by the Borrower
pursuant to this Agreement or under any Note, and all liabilities with respect
thereto, excluding (i) in the case of each Bank, each Issuing Bank and the
Administrative Agent, taxes imposed on its income, and franchise or similar ta:<es
imposed on it, by a jurisdiction under the laws of which such Bank, such Issuing
Bank or the Administative Agent (as the case may be) is organized or in which
its principal executive office is located or, in the case of each Bank, in which its
Applicable Lending Office is located and (ii) in the case of each Bank, any United
States withholding ta"x imposed on such payments but only to the extent that such
Bank is subject to United States withholding tax at the time such Bank first
becomes a party to this Agreement.
"Other Taxes" means any present or future stamp or documentary taxes
and any other excise or property taxes, or similar charges or levies, which arise
from any payment made pursuant to this Agreement or under any Note or from
the execution or delivery o[ or otherwise with respect to, this Agreement or any
Note.
(b) Any and all payments by the Borrower to or for the account of any
Bank, any Issuing Bank or the Adminisfrative Agent hereunder or under any Note
shall be made without deduction for any Ta;res or Other Taxes; provided that, if
the Borrower shall be required by law to deduct any Taxes or Other Ta:res from
any such payments, (i) 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 8.04) such Bank, such Issuing Bank or
the Administrative Agent (as the case maybe) receives an amount equal to the
sum it would have received had no such deductions been made, (ii) the Borrower
shall make such deductions, (iii) the Borrower shall pay the full amount deducted
to the relevant ta:ration authority or other authority in accordance with applicable
law and (iv) the Borrower shall furnish to the Adminisfrative Agent, at its address
referred to in Section 9.01, the original or a certified copy of a receipt evidencing
payment thereof.
(c) The Borrower agrees to indemni$ each Bank, each Issuing Bank
and the Administative Agent for the fulI amount of Taxes or Other Taxes
(including, without limitation, any Taxes or Other Taxes imposed or asserted by
any jurisdiction on amounts payable under this Section 8.0a) paid by such Bank,
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such Issuing Bank or the Administrative Agent (as the case may be) and any
liability (including penalties, interest and expenses) arising therefrom or with
respect thereto. This indemnification shall be paid within 15 days after such
Bank, such Issuing Bank or the Administative Agent (as the case may be) makes
demand therefor.
(d) Each Bank organized under the laws of a jurisdiction outside the
United States, on or prior to the date of its execution and delivery of this
Agreement in the case of each Bank listed on the signature pages hereof and on or
prior to the date on which it becomes a Bank in the case of each other Bank, and
from time to time thereafter if requested in writing by the Borrower (but only so
long as such Bank remains lawfully able to do so), shall provide the Borrower
with Internal Revenue Service form W-8BEN or W-8ECI, as appropriate, or any
successor form prescribed by the Internal Revenue Service, certifying that such
Bank is entitled to benefits under an income ta:r treaty to which the United States
is a party which exempts the Bank from United States withholding tax or reduces
the rate of wittrholding tax on payments of interest for the account of such Bank
or certi$ing that the income receivable pursuant to this Agreement is effectively
connected with the conduct of a frade or business in the United States.
(e) For any period with respect to which a Bank has failed to provide
the Borrower with the appropriate form pursuant to Section 8.04(d) (unless such
failure is due to a change in treaty, law or regulation occurring subsequent to the
date on which such form originally was required to be provided), such Bank shall
not be entitled to indemnification under Section &q4O) or 8.04(c) with respect to
Taxes imposed by the United States;provided that if a Bank, which is otherwise
exempt from or subject to a reduced rate of withholding tax, becomes subject to
Taxes because of its failure to deliver a form required hereunder, the Borrower
shall take such steps as such Bank shall reasonably request to assist such Bank to
recover such Taxes
(D If the Borrower is required to pay additional amounts to or for the
account of any Bank pursuant to this Section 8.04, then such Bank will change the
jurisdiction of its Applicable Lending Office if, in the judgment of such Bank,
such change (i) will eliminate or reduce any such additional payment which may
thereafter accrue and (ii) is not otherwise disadvantageous to such Bank.
Section 8.05. Base Rate Loans Substilutedfor Affected Fixed Rate Loans.
If (i) the obligation of any Bank to make, or to continue or convert outstanding
Loans as or to, Euro-Dollar Loans has been suspended pursuant to Section 8.02 or
(ii) any Bank has demanded compensation under Section 8.03 or 8.04 with respect
to its Euro-Dollar Loans and the Borrower shall, by at least three Euro-Dollar
Business Days' prior notice to such Bank through the Administrative Agent, have
elected that the provisions of this Section shall apply to such Bank, then, unless
and until such Bank notifies the Borrower that the circumstances giving rise to
such suspension or demand for compensation no longer apply, all Loans which
would otherwise be made by such Bank as (or continued as or converted to)
Euro-Dollar Loans shall instead be Base Rate Loans (on which interest and
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principal shall be payable contemporaneously with the related Fixed Rate Loans
of the other Banks). If such Bank notifies the Borrower that the circumstances
giving rise to such suspension or demand for compensation no longer exist, the
principal amount of each such Base Rate Loan shall be converted into a Euro-
Dollar Loan on the first day of the next succeeding Interest Period applicable to
the related Euro-Dollar Loans of the other Banks.
Section 8.06. SaDstitution of Bank. If (i) the obligation of any Bank to
make, or to continue or convert outstanding Loans as or to, Euro-Dollar Loans has
been suspended pursuant to Section 8.02 or (ii) any Bank has demanded
compensation under Section 8.03 or 8.04, the Borrower shall have the right, with
the assistance of the Administrative Agent, to seek a mutually satisfactory
substitute bank or banks (which may be one or more of the Banks) to purchase for
cash, pursuant to an Assignment and Assumption Agreement in substantially the
form of Exhibit G hereto, the outstanding Loans and Commitment of such Bank
and to assume all of such Bank's other rights and obligations hereunder without
recourse to or warranty by, or expense to, such Bank, for a purchase price equal to
(A) the principal amount of all of such Bank's outstanding Loans plus (B) any
accrued but unpaid interest thereon plus (C) the accrued but unpaid fees in respect
of that Bank's Commitment hereunderprras @) such amount, if any, as would be
payable pursuant to Section 2.14 if the outstanding Loans of such Bank were
prepaid in their entirety on the date of consummation of such assignment plus (E)
any other amounts due and payable to such Bank hereunder.
ARTICLE 9
MtscBrrlurous
Section 9.01. Notices. All notices, requests and other communications to
any party hereunder shall be in writing (including bank wire, telex, facsimile
fiansmission or similar writing) and shall be given to such party: (v) in the case
of the Borrower, at its address or facsimile number set forth on the signature
pages hereo{, (w) in the case of the Administrative Agent, at its address, facsimile
number or telex number set forth on the signature pages hereof, (x) in the case of
any Issuing Bank, at its address, facsimile number or telex number set forth on the
signature pages hereofi (y) in the case of any Bank, at its address, facsimile
number or telex number set forth in its Adminishative Questionnaire or (z) in the
case of any party, such other address, facsimile number or telex number as such
party may hereafter speciff for the purpose by notice to the Adminisfrative Agent
and the Borrower. Each such notice, request or other communication shall be
effective (i) if given by telex, when such telex is fransmitted to the telex nurnber
specified in this Section and the appropriate answerback is received, (ii) if given
by facsimile transmission, when hansmitted to the facsimile number specified in
this Section and confirmation of receipt is received, (iii) if given by mail, 72 hours
after such communication is deposited in the mails with first class postage
prepaid, addressed as aforesaid or (iv) if given by any other means, when
delivered at the address specified in this Section;provided that notices to the
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Administrative Agent or any Issuing Bank under Article 2 or Article 8 shall not be
effective until received.
Section 9.02. No Watvers. No failure or delay by the Administrative
Agent or any Bank or Issuing Bank in exercising any right, power or privilege
hereunder or under any Note or under any Letter of Credit shall operate as a
waiver thereof nor shall any single or partial exercise thereof preclude any other
or further exercise thereof or the exercise of any other right, power or privilege.
The rights and remedies herein provided shall be cumulative and not exclusive of
any rights or remedies provided by law.
Section 9.03. Expenses; Indemnification. (a) The Borrower shall pay (i)
all reasonable out-of-pocket expenses of Adminishative the Agent, including fees
and disbursements of special counsel for the Adminisfrative Agent, in connection
with the preparation of this Agreement, any waiver or consent hereunder or any
amendment hereof or any Default or alleged Default hereunder and (ii) if an
Event of Default occllls, all reasonable out-of-pocket expenses incurred by the
Administrative Agent or any Bank or any Issuing Bank, including (without
duplication) the fees and disbursements of outside counsel and the allocated cost
of inside counsel, in connection with such Event of Default and collection,
bankruptcy, insolvency, workout, restructuring and other enforcement
proceedings resulting therefrom.
(b) The Borrower agrees to indemniff the Administrative Agent, each
Bank and each Issuing Bank, their respective affiliates and the respective
directors, oflicers, agents and employees of the foregoing (each an "Indemnitee')
and hold each Indemnitee harmless from and against any and all liabilities, losses,
damages, costs and reasonable expenses of any kind, including, without
limitation, the reasonable fees and disbursements of counsel, which may be
incurred by such Indemnitee in connection with any investigative, adminishative
or judicial proceeding (whether or not such Indemnitee shall be designated a party
thereto) in any way relating to or arising out of (x) any acquisition or proposed
acquisition of equity securities for which the proceeds of any Loans or any Letter
of Credit hereunder may be used or (y) a transaction which is (or may be) subject
to the provisions of Section 6.0t(l); provided that no krdemnitee shall have the
right to be indemnified hereunder for such Indemnitee's own gross negligence or
willful misconduct as determined by a court of competent jurisdiction.
Section 9.04. Set-Offs; Sharing. (a) If (i) an Event of Default has
occurred and is continuing and (ii) the Required Banks have requested the
Adminisffative Agent to declare the Loans and the Reimbursement Obligations to
be immediately due and payable ptrsuant to Article 6, or the Loans and the
Reimbursement Obligations have become immediately due and payable without
notice as provided in Article 6, then the Administrative Agent, each Bank and
each Issuing Bank are hereby authorized by the Borrower at any time and from
time to time, to the extent permitted by applicable law, without notice to the
Borrower (any such notice being expressly waived by the Borrower), to set off
and apply all deposits (general or special, time or demand, provisional or final) at
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any time held and other indebtedness at any time owing by the Administrative
Agent or such Bank or Issuing Bank, as the case may be, to or for the account of
the Borrower against any obligations of the Borrower to the Administative Agent
or such Bank or Issuing Bank, as the case may be, now or hereafter existing under
this Agreement, regardless of whether any such de,posit or other obligation is then
due and payable or is in the same currency or is booked or otherwise payable at
the same office as the obligation against which it is set offand regardless of
whether the Administrative Agent or such Bank or Issuing Banlq as the case may
be, shall have made any demand for payment under this Agreement. The
Administrative Agent and each Bank agree promptly to notiff the Borrower after
any such set-off and application is made by such pafiy; providedlhat any failtre
to give such notice shall not affect the validity of such setoffand application. The
rights of the Administative Agent and the Banks under this subsection are in
addition to any other rights and remedies which they may have.
(b) Each Bank agrees that if it shall, by exercising any right of set-offor
counterclaim or otherwise, receive payment of a proportion of the aggregate
amount ofprincipal and interest due with respect to the Loans and Letter of Credit
Liabilities held by it which is greater than the proportion receivcd by any other
Bank in respect of the aggregate amount of principal and interest due with respect
to the Loans and Letter of Credit Liabilities held by such other Bank, the Bank
receiving such proportionately greater payment shall purchase such participations
in the loans held by the other Banks, and such other adjusfinents (including,
without limitation, any adjustments required by reason of a setoffsubsequently
being rescinded or otherwise required to be restored) shall be made from time to
time, as may be required so that all such payments of principal and interest with
respect to the Loans and Letter of Credit Liabilities held by the Banks shall be
shared by the Bankspro rata;provided that nothing in this Section shall impair
the right of any Bank to exercise any right of set-offor counterclaim it may have
and to apply the amount subject to such exercise to the payment of indebtedness
of the Borower other than its indebtedness hereunder. The Borrower agrees, to
the fullest extent it may effectively do so under applicable law, that any holder of
a participation in a Loan or Letter of Credit Liability, whether or not acquired
pursuant to the foregoing arrangements, may exercise rights of set-off or
counterclaim and other rights with respect to such participation as fully as if such
holder of a participation were a direct creditor of the Borrower in the amount of
such participation.
Section 9.05. Amendments and lYaivers. Any provision of this
Agreement or the Notes may be amended or waived if, but only if such
amendment or waiver is in writing and is signed by the Borrower and the
Required Banks (and, if the rights or duties of any Issuing Bank or the
Administrative Agent are affected thereby, by it); provided that no such
amendment or waiver shall, (A) unless signed by each affected Bank, (i) increase
or decrease the Commitment of any Bank (except for a ratable decrease in the
Commiments of all Banks) or subject any Bank to any additional obligation, (ii)
reduce the principal of or rate of interest on any Loan or any Reimbursement
Obligation or any fees hereunder (other than any fees referred to in Section
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2.09OXii) or Section 2.17(bxii) which maybe mutually agreed between the
Borrower and the Issuing Bank from time to time) or (iii) postpone the date fixed
for any payment of principal of or interest on any Loan or any Reimbursernent
Obligatiorq any fees hereunder or for any reduction or termination of any
Commitnent or (except as expresslyprovided in Section 2.17) the exprry date of
any Letter of Credit, or (B) unless signed by all the Banks, (i) change the
percentage of the Commitnents or of the aggregate unpaid principal amount of
the Loans, or the number of Banks, which shall be required for the Banks or any
of them to take any action under this Section 9.05 or any other provision of this
Agreement, (ii) alter the right of anyBank topro rata shaing of payments as
provided herein or (iii) change this Section 9.05.
Section 9.06. Successors and Assigns. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and assigns, except that the Borrower may not assign
or otherwise tansfer any of its rights under this Agreement without the prior
written consent of all Banks.
(b) Any Bank may at any time grant to one or more banks or other
institutions (each a "Participant') participating interests in its Commitnent,
including all or a portion of its Loans and/or Letter of Credit Liabilities at the time
owing to it. In the event of any such grant by a Bank of a participating interest to
a Participant, whether or not upon notice to the Borrower and the Administrative
Agint, such Bank shall remain responsible for the performance of its obligations
hereunder, and the Borrower and the Adminisfrative Agent shall continue to deal
solely and directly with such Bank in connection with such Bank's rights and
obligations under this Agreement. Any agreement pursuant to which any Bank
may grant such a participating interest shall provide that such Bank shall retain
the sole right and responsibility to enforce the obligations of the Borrower
hereunder including, without limitation, the right to approve any amendment,
modification or waiver of any provision of this Agreement; provided that such
participation agreement mayprovide that such Bank will not agree to any
modification, amendment or waiver of this Agreement described in clause (i), (iD
or (iii) of Section 9.05 without the consent of the Participant. Promptly after any
Bank grants any such participating interest (except a participating interest in one
or more Competitive Bid Loans), such Bank shall inform the Borrower of the
identity of the Participant and the amount of such participating interest. The
Borrower agrees that each Participant shall, to the extent provided in its
participation agreement, be entitled to the benefits of Article 8 with respect to its
participating interest. An assignment or other transfer which is not permitted by
subsection (c) or (d) below shall be gtven effect for purposes of this Agreement
only to the extent of a participating interest granted in accordance with this
subsection (b).
(c) Any Bank may at any time assign to one or more banks or other
institutions (each an "Assignee') all, or a proportionate part of all (equivalent to
an initial Commitnent of not less than $5,000,000), of its rights and obligations
under this Agreanent and the Notes, and such Assignee shall assume such rights
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and obligations, pursuant to an Assignment and Assumption Agreement in
substantially the form of Exhibit G hereto executed by such Assignee and such
fiansferor Bank, with (and subject to) the subscribed consent of the Borrower
(which shall not be unreasonably wittrheld or delayed), and the Adminisfrative
Agent shall be gven prompt notice of any such assigrunent; provided that, if an
Assignee is an Approved Fund, an affiliate of such transferor Bank or was a Bank
immediately before such assignment, or if an Event of Default exists, no such
consent shall be required, andprovidedfurther that such assignment may, but
need not, include rights of the fiansferor Bank in respect of outstanding
Competitive Bid toans. Upon execution and delivery of such an instnrment and
payment by such Assignee to such fransferor Bank of an amount equal to the
purchase price agreed between such transferor Bank and such Assignee, such
Assignee shall be a Bank party to this Agreement and shall have all the rights and
obligations of a Bank with a Commitnent as set forttr in such insfrument of
assumption, and the transferor Bank shall be released from its obligations
hereunder to a corresponding extent, and no further consent or action by any party
shall be required. Upon the consummation of any assignment pursuant to this
subsection (c), the transferor Bank, the Administrative Agent and the Borrower
shall make appropriate a:rangements so that, if required and/or requested, a new
Note is issued to the Assignee. In connection with any such assignment (other
than an assignment to an Approved Fund or an affrliate of such transferor Bank),
the transferor Bank shall pay, or cause to be paid, to the Administrative Agent an
administrative fee for processing such assignment in the amount of $2,500. If the
Assignee is not incorporated under the laws of the United States of America or a
state thereof, it shall, prior to the thirtieth day following the execution of the
instrument of assignment, deliver to the Borrower and the Administrative Agent
certification as to exemption from deduction or withholding of any United States
federal income ta:res in accordance with Section 8.0a(d).
(d) fuiy Bank may at any time assign all or anyportion of its rights
under this Agreement and its Note to a Federal Reserve Bank. No such
assignment shall release the tansferor Bank from its obligations hereunder.
(e) No Assignee, Participant or other transferee of any Bank's rights
shall be entitled to receive any greater payment under Section 8.03 or 8.04 than
such Bank would have been entitled to receive with respect to the rights
tansferred, unless such transfer is made with the Borower's prior written consent
or by reason of the provisions of Section 8.02, 8.03 or 8.04 requiring such Bank to
designate a different Applicable Lending Office under certain circumstances or at
a time when the circumstances glving rise to such greater payment did not exist.
(0 The Administative Agent, acting solely for this purpose as an agent
of the Borrower, shall maintain at one of its offices in the State of Delaware or
New York a copy of each Assignment and Assumption Agreement delivered to it
and a register for the recordation of the narnes and addresses of the Banks, and the
Commiunents of, and principal amount of the Loans owing to, and the Letter of
Credit Liabilities of, each Bank pursuant to the terms hereof from time to time
(the "Register"). The enries in the Register shall be conclusive, and the
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Borrower, the Administative Agent and the Banks may treat each Person whose
name is recorded in the Register pursuant to the terms hereof as a Bank hereunder
for all purposes of this Agreement, notwithstanding notice to the confrary. The
Register shall be available for inspection by the Borrower and any Bank, at any
reasonable time and from time to time upon reasonable prior notice.
(g) Notwithstanding anything to the confrary contained herein, any
Bank (a 6Granting Bank") may grant to a qpecial purpose funding vehicle (a
"SPC"), identified as such in writing from time to time by the Granting Bank to
the Administrative Agent and the Borrower, the option to provide to the Borrower
all or any part of any Loan that such Granting Bank would otherwise be obligated
to make to the Borrower pursuant to this Ageement;provided that (i) nothing
herein shall constitute a commitrnent by any SPC to make any Loan, and (ii) if an
SPC elects not to exercise such option or otherwise fails to provide all or any part
of such Loan, the Granting Bank shall be obligated to make such Loan pursuant to
the terms hereof. The making of a Loan by an SPC hereunder shall utilize the
Commitment of the Granting Bank to the same extent, and as if, such Loan were
made by such Granting Bank. Each party hereto hereby agrees that no SPC shall
be liable for any indemnity or similar payment obligation under this Agreement
(all liability for which shall remain with the Granting Bank). In addition, each
party hereto hereby agrees (which agreement shall survive the termination of this
Agreement) that, prior to the date that is one year and one day after the payment
in full of all outstanding commercial paper or other senior indebtedness of any
SPC, it will not institute against, or join any other person in instituting against,
such SPC any bankruptcy, reorganization, arangement, insolvency or liquidation
proceedings or any other proceeding under any bankruptcy or similar law.
Notwithstanding anything to the contrary contained in this Section 9.06(9), any
SPC may (0 with notice to, but without the prior written consent oe the Borrower
and the Adminishative Agent and without payrng any processing fee therefor,
assign all or a portion of its interests in any Loans to the Granting Bank or to any
financial institutions (consented to by the Borrower and Administative Agent)
providing liquidity and/or credit support to or for the account of such SPC to
support the funding or maintenance of Loans and (ii) disclose on a confidential
basis any non-public information relating to its Ioans to any rating agency,
commercial paper dealer or provider of any surety, guarantee or credit or liquidity
enhancement to such SPC. No amendment to this Section 9.06(g) shall be
binding on any SPC without its written consent.
Section 9.07. Confidentiality. Each of the Adminisfiative Agent, Issuing
Bank and the Banks agtee to exercise all reasonable efforts to keep any
proprietary or financial information delivered or made available to it by the
Borrower confidential from anyone other than (x) the officers, directors and
employees of the Administrative Agent, any Issuing Bank, any Bank or any of
their respective affiliates who have a need to know such information in
accordance with customary banking practices and (y) agents oi or persons
retained by, the Administrative Agent, any Issuing Bank or any Bank who are or
are expected to become engaged in evaluating, approving, structtuing or
administering the Loans, and who, in the case of (x) and (y), receive such
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information having been made aware of the resfrictions set forth in this Section;
provided that nothing herein shall prevent the Administative Agent, any Issuing
Bank or any Bank from disclosing such information (i) to the Administrative
Agent, any Issuing Bank or any Bank in connection with the ftansactions
contemplated by this Agreement, (ii) upon the order of any court or administrative
agency or otherwise pursuant to subpoena or similar procedure or in accordance
with law, (iii) upon the request or demand of any regulatory agency or authority
having jurisdiction over the Adminishative Agent, any Issuing Bank or any Bank,
(iv) which has been publicly disclosed, (v) to the extent reasonably required in
connection with any litigation to which the Adminishative Agent, any Issuing
Bank, any Bank or their respective affiliates may be a party, (vi) to the
Adminishative Agent's, any Issuing Bank's or any Bank's legal counsel and
independent auditors, (vii) to any actual or proposed Participant or Assignee of all
or part of such Bank's rights hereunder, or to any actual or proposed contractual
counterparty (or its advisors) to any securitization, hedge, or other derivative
transaction relating to a party's obligations hereunder, in each case which has
agreed in writing to be bound by the provisions of this Section 9.07, (viii) in
courection with the exercise of any remedy hereunder or (ix) with the prior
written consent of the Borrower. The Adminishative Agent, each Issuing Bank
and each Bank shall attempt in good faith, to the extent permiued by applicable
law, (i) to noti$ the Borrower of any disclosure of such information referred to in
clause (ii) of the preceding sentence and (ii) upon a reasonable and timely request
by the Borrower, cooperate with the Borrower (at the Borrower's expense) for
any application the Borrower may make for an appropriate protective order to
preserve the confidentiality of such information or limit the disclosure thereof.
Notwithstanding anything in this Agreement to the contrary, each party to this
Agreement (and each of its employees, representatives or other agents) may
disclose to any and all persons, without limitation of any kind, the tan treatment
and ta:r structure of the credit facility provided pursuant to this Agreement and all
materials of any kind, including opinions or other ta:< analyses, that have been
provided to it by any other party relating to such tax heatrnent and tor structure.
Section 9.08. Collateral. Each of the Banks represents to the
Administrative Agent, each Issuing Bank and each of the other Banks that it in
good faith is not relying upon any "margin stock" (as defined in Regulation U) as
collateral in the extension or maintenance of the credit provided for in this
Agreement
Sectidn 9.09. Governing Law; Submission to Jurisdictloz. This
Agreement and each Note shall be governed by and construed in accordance with
the laws of the State of New York. The Borrower hereby submits to the
nonexclusive jurisdiction of the United States District Court for the Southern
District of New York and of any New York State court sitting in New York City
for purposes of all legal proceedings arising out of or relating to this Agreement
or the transactions contemplated hereby. The Borrower irrevocably waives, to the
fullest extent permitted by law, any objection which it may now or hereafter have
to the layrng of the venue of any such proceeding brought in such a court and any
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claim that any such proceeding brought in such a court has been brought in an
inconvenient forum.
Section 9.10. Counterparts; Integration This Agreement may be signed
in any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument. This
Agreement constitutes the entire agreement and understanding among the parties
hereto and supersedes any and all prior agreements and wrderstandings, oral or
written, relating to the subject matter hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed by their respective authorized officers as of the day and year
first above written.
PACIFICOFJ
By:"1** r{ U-u..^-
Address: 825 N.E. Multnomatr
Portland, Oregon 97232
Telecopy number: (503) 81 3-5673
BruceN. Williarns
Treasurer
Name:
Title:
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(NY) 04675/l 59/CA03/c..36{dry.206.orccutiondoc 05/3CV03 l2:13 PM
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JPMORGAN CHASE BANK
By:
Title:Thomas L. Casey
Vice Presidento
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HSBC BANK PLC
By,
Name
Title:
THE BANK OF NOVA SCOTIA
By:
Name
Title:
THE BANK OF TOKYO-MITSUBISHI,
LTD.
By:
Name
Tifle:
THE ROYAL BANK OF SCOTLAND PLC
By
Name
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(NY) 04675/l 59/CA03l ca.l64 &y.2003.exccutioo.doc
Title:
05/30/03 l2:13 PM
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JPMORGAN CHASE BANK
By:
Name
Title:
HSBC BANK PLC
By:
Name * rffisFr
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Title:
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THE BANK OF NOVA SCOTIA
By,
Name
Title:
THE BANK OF TOKYO.MTTSUBISHI,
LTD.
By:
Name
Title:
THE ROYAL BANK OF SCOTLAND PLC
Name
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(NY-) 04675/l 59lCA03/o.364d:y.2003.cxccution.dc
By:
Title:
05/30/03 l2:13 PM
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Name:
Title:
HSBC BANK PLC
By:
By:
Name:
Title:
THE BANK OF NOVA SCOTIA
By:
Name:
Tille:
DENIS P. O'MEARA
MANAGING DIRECTOR
o
THE BANK OF TOKYO-MITSUBISHI,
LTD.
By:
Name
Title:
THE ROYAL BANK OF SCOTLAND PLC
By:
Name:
Title:
JPMORGAN CHASE BANK
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By:
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JPMORGAN CHASE BANK
Name:
Title:
HSBC BANK PLC
Name:
Title:
THE BANK OF NOVA SCOTIA
Name:
Title:
TIIE BANK OF TOKYO-MITSUBISHI,
Lm.
By:
Nakazava
Title: Vice Presideut & llanager
T}IE ROYAL BANKOF SCOTLAND PLC
Name:
Title:
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JPMORGAN CHASE BANK
Name:
Iitle:
HSBC BANK PLC
By:
Name:
Title:
THE BANK OF NOVA SCOTIA
By:
Name
Title:
THE BANK OF TOKYO.MITSUBISHI,
LTD.
By:
Name:
Title:
THE ROYAL BANK OF SCOTLAND PLC
By
ameTitle: Senior Vice President
By
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(NY) 0467 5/l 59iCA03lca.364day.2003.execution.doc 05/30/03 l2:13 PM
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a BANK ONE, NA
(MArN OFFTCE-CHTCAGO)
By:
N
Title:JANE A. EEK
DIRECTORo
BARCLAYS BANK PLC
o By:
Name:
Title:
a CITIBANK, N.A.
By:
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Name:
Title:
COMMERZBANK AG
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Name:
Title:
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CREDIT SUISSE FTRST BOSTON,
ACTING THROUGH ITS CAYMAN
ISLANDS BRANCH
a By:
Name:
Title:
o Name:
Title :
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BA}{K ONE, NA
(MAIN OFFTCE-CHICAGO)
Byr
Name:
Title:
BARCI-AYS BA}IK
By:A
Name:
Titlo:
CITIBANK, N.A.
Nasre:
Titlc:
COMMERZBA].TK AG
Name:
Title:
CREDIT SUISSE FIRST BOSTON,
ACTING THROUGH ITS CAYI\,MN
ITILA}..IDS BRAI{CH
Name:
Title:
By:
Name:
Title:
By:
By:
By:
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BANK ONE, NA
(MArN OEFTCE-CHICAGO)
By:
Name:
Title:
BARCLAYS BANK PLC
By:
Name:
Title:
CITIBANK, N.A.
By:1r:?rz- ,^-,L- L--=-
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COMMERZBANK AG
By:
Name:
Title:
CREDIT SUISSE FIRST BOSTON,
ACTING THROUGH ITS CAYMAN
ISLANDS BRANCH
By:
Name
Title:
Name:
Title:
By
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BANK ONE, NA
(MA[N OFFTCE-CHTCAGO)
Name:
Title:
BARCLAYS BANK PLC
By
By:
By:
Name:
Title:
CITIBANK, N.A.
By:
Name:
Title:
COMMERZB
Grand
By:
Name:
Title:
--".4,
, New Y,ot::9'
Jagenberg
and Manager
-&. -zt/dNarirE:
Title:
Karla Wirth
Assistant Vice President
CREDIT SUISSE FIRST BOSTON,
ACTING THROUGH ITS CAYN4AN
ISLANDS BRANCH
By:
Name
Title:
Name:
Title:
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By:
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By:
BANK ONE, NA
(MArN OFFTCE-CHTCAGO)
By:
Name:
Title:
BARCLAYS BANK PLC
Name:
Title:
CITIBAMq N.A.
By:
Name:
Title:
COMMERZBANK AG
By:
Name:
Title:
CREDIT SUISSE FIRST BOSTON,
ACTING THROUGH ITS CAYMAN
ISLANDS BRANCH
By:
Name:
Title:SARAH WU
VICE PRESIDENT
,/'l
d,;t(..t-tu^ 1-^".(
DOHEEN B. WELCH
ASSOCIATE
Name:
Title:
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Name:
Title:
By:
Narne:
Title:
DEUTSCHE BANK AG NEW YORK
BRANCH
By: tL4,.hul € LrsJ-4
Name: Michael Keating
Title: Managing Director
By,
Name: Hans Narberhaus
Title: Vice President
FLEET NATIONAL BANK
By:
Name:
Title:
ROYAL BANK OF CANADA
Name:
Title:
U.S. BANK NATIONAL ASSOCIATION
By:
Name:
Title:
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Name
Title:
By:
Name
Title:
DEUTSCHE BANK AG NEW YORK
BRANCH
By:
Name:
Title:
By:
Name:
Title:
FLEET AL BANK
By:
Name: Wr Marullo
Title:Director
ROYAL BANK OF CANADA
By:
Name
Title:
U.S. BANK NATIONAL ASSOCIATION
By:
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Name
05/3003 12:13 PM
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DEUTSCHE BANK AG NEW YORK
BRANCH
Name
Title:
By:
Name:
Title:
FLEET NATIONAL BANK
By:
Name:
Title:
ROYAL BANK OF CANADA
By:
Title:
Suzanne
Manager
U.S, BANK NATIONAL ASSOCIATION
By:
Name:
Title:
By:
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U.S. BANK NATIONAL ASSOCIATION
By:7-
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Vice President
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UBS AG, CA
By:
Name
Title:
By:
Name Thomae R. Salzrno
: DireetorTitle: Bankine Producr^r Services' US
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BNP PARIBAS
By:
Name
Title:
By:
Narrre
Title:
KBC BANK, N.V.
By:
Name
Title:
Name
Title
NATIONAL AUSTRALI.A BANK
LMMED, A.B.N. 12 N4 U4 937
By:
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BNP PARIBAS
By:
Title:
By:
ame:
Title:
MABK A. RENAUD
Managlng Director
FRANCIS J. DEDirector LANEY
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(NY) 046?5/159/CA03/ca.364day.2003.execution.doc 05/30103 12:13 PM
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UBS AG, CAYMAN ISLANDS BRANCH
By,
Name:
Title:
By:
Name:
Title:
BNP PARIBAS
By:
Name:
Title:
By:
Name:
Title:
KBC BANK, N.V.
By:
ame:SNAUFFER
Title:FIRSTVICE PRE$IDENT
By:
ERIC RASKIN
VICE PRESIDE}ff
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NATIONAL AUSTRALIA BANK
LIMITED, A.B.N. 12 OO4 044 937
By:
Name
Title:
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Name:
Title:
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By:
By:
UBS AG, CAYMAN ISLANDS BRANCH
Name:
Title:
Name:
Tirle:
BNP PARIBAS
By:
Name:
Title:
By:
Name:
Title:
KBC BANK N.V.
Name
Title:
By:
Name:
Title:
NATIONAL AUSTRALIA BANK
LIMITED,A.B.N. 12 004 7
By:
By:
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Name: 77o>n*STitle: 6, pEcIzfZ
CR.orrt, x)
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WACHOVIA BANK, N.A.
By:
Title:
(-'5a Brrjon)
$r"cara'f
WELLS FARGO BANK
By:
Name:
Title:
(NY) 0467y1 59rCA03/q.364day.2003.amution.da 05/30O3 l2:13 PM
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Vice President
270 Parir. Avenue,4th Floor
212-270-3089
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JPMORGAN CHASE BANK,
as Administrative Agent
Title:
Address:
Facsimile
number:
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(NY) 0467 5/I 59/CA0ve.364day.2(x)3.cxcutim.dc 0J6ry03 12:13 PM
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COMMITMENT SCHEDULE
o Name of Bank Commitment Amount
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JPMorgan Chase Bank
HSBC Bank PLC
The Bank of Nova Scotia
The Bank of Tokyo-Mitsubishi, Ltd.
The Royal Bank of Scotland plc
Bank One, NA
Barclays Bank PLC
Citibank, N.A.
Commerzbank AG
Credit Suisse First Boston Cayman Island Branch
Deutsche Bank AG New York Branch
Fleet National Bank
Royal Bank of Canada
U.S. Bank National Association
UBS AG, Cayman Islands Branch
BNP Paribas
KBC Bank, N.V.
National Australia Bank Limited, A.B.N.12 004 044 937
Wachovia Bank, N.A.
Wells Fargo Bank
$34,000,000
$34,000,000
$34,000,000
$34,000,000
$34,000,000
$25,000,000
$25,000,000
$25,000,000
$25,000,000
$25,000,000
$25,000,000
$25,000,000
$25,000,000
$25,000,000
$25,000,000
$16,000,000
$16,000,000
$16,000,000
$16,000,000
$16,000,000
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Total $500,000,000
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PRICING SCHEDULE
The "Euro-Dollar Margin" and "Facility Fee Rate" for any day are the
respective rates per annum set forth below in the applicable row and column
corresponding to the Pricing Level and Usage that apply on such day Qtrovided
that on and after the Termination Date, the Euro-Dollar Margin for any Term
Loan shall be equal to the percentage so determined plus .375% per arurum):
For purposes of this Schedule, the following terms have the following
meanings:
"Level I Pricing" applies on any day if on such day the Borrower's senior
unsecured long-term debt is rated A or higher by S&P and A2 or higher by
Moody's.
"Level II Pricing" applies on any day if on such day no lower Pricing
Level applies and the Borrower's senior unsecured long-term debt is rated A- or
higher by S&P and A3 or higher by Moody's.
"Level III Pricing" applies on any day if on such day no lower Pricing
Level applies and the Borrower's senior unsecured long-term debt is rated BBB+
or higher by S&P and Baal or higher by Moody's.
"Level IV Pricing" applies on any day if on such day no lower Pricing
Level applies and the Borrower's senior unsecured long-term debt is rated BBB or
higher by S&P and Baa2 or higher by Moody's.
"Level V Pricing" applies on any day if on such day no lower Pricing
Level applies and the Borrower's senior unsecured long-term debt is rated BBB-
or higher by S&P and Baa3 or higher by Moody's.
"Level VI Pricing" applies on any day if no lower Pricing Level applies
on such day.
"Moody's" means Moody's lnvestors Service, Inc., a Delaware
corporation, and its successors, or, ifsuch corporation and its successors shall no
longer perform the functions of a securities rating agency, "Moody's" shall be
deemed to refer to any other nationally recognized securities rating agency
designated by the Required Banks, with the approval of the Borrower, by notice
to the Administrative Agent and the Borrower.
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Pricing Level I Level II Level III Level [V Level V Level VI
Euro-Dollar
Margin:
Usage <3304
Usage > 33Yo
.420%
.545%
.475%
.600%
.62s%
.7s0%
.850%
.975%
r.2s0%
r.375%
r.500%
1.625%
Facility Fee Rate 08%t0%t25%t5%.25%35%
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(NY) 04675/l 59/C A03 I ca.3 64day.2003.execution.doc 05/30/03 l2:13 PM
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"Pricing Level" refers to the determination of which of Level I Pricing,
Level II Pricing, Level III Pricing, Level IV Pricing, Level V Pricing or Level VI
Pricing applies on any day. Level I Pricing is the lowest Pricing Level and Level
VI Pricing the highest.
a
"S&P" means Standard & Poor's Ratings Services and its successors or, if
Standard & Poor's Ratings Services and its successors shall no longer perform the
functions of a securities rating agency, "S&P" shall be deemed to refer to any
other nationally recognized securities rating agency designated by the Required
Banks, with the approval of the Borrower, by notice to the Administrative Agent
and the Borrower.
o
The "Usage" applicable to any date is the percentage equivalent of a
fraction the numerator of which is the Total Outstanding Amount at such date and
the denominator of which is the Total Commitment at such date. If for any reason
the Total Outstanding Amount is not zero immediately following the termination
of the Commitments, Usage will thereafter be deemed to be 100%.
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For purposes of this Pricing Schedule, the credit ratings in effect on any
day are those in effect at the close of business on such day.
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EXHIBIT A
NOTE
New York, New York
For value received, PacifiCorp, an Oregon corporation (the "Borrower"),
promises to pay to the order of
(the "Bank"), for the account of its Applicable Lending Office, the unpaid
principal amount of each Loan made by the Bank to the Borrower pursuant to the
Credit Agreement referred to below on the maturity date provided for in the
Credit Agreement. The Borrower promises to pay interest on the unpaid principal
amount of each such Loan on the dates and at the rate or rates provided for in the
Credit Agreement. The Borrower also promises to pay all fees and other amounts
payable to or for the account of the Bank pursuant to the Credit Agreement on the
dates when such amounts are due and payable as provided in the Credit
Agreement. All such payments of principal, interest and other amounts shall be
made in lawful money of the United States in Federal or other immediately
available funds at the office of JPMorgan Chase Bank, 2T0ParkAvenue, New
York, New York.
All Loans made by the Bank, the respective types and maturities thereof
and all repayments of the principal thereof shall be recorded by the Bank and,
prior to any transfer hereof appropriate notations to evidence the foregoing
information with respect to each such Loan then outstanding shall be endorsed by
the Bank on the schedule attached hereto, or on a continuation of such schedule
attached to and made a part hereof; provided that the failure of the Bank to make
any such recordation or endorsement shall not affect the obligations of the
Borrower hereunder or under the Credit Agreement.
This note is one of the Notes referred to in the 364-Day Credit Agreement
dated as of June 3,2003 among the Borrower, the Banks party thereto, JPMorgan
Chase Bank, as Administrative Agent, and HSBC Bank plc, as Syndication Agent
(as the same may be amended from time to time, the "Credit Agreement").o
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Terms defined in the Credit Agreement are used herein with the same
meanings. Reference is made to the Credit Agreement for provisions for the
prepayment hereof and the acceleration of the maturity hereof.
PACIFICORP
Name:
Title:
By
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Note (cont'd)
LOAI\S AI\ID PAYMENTS OF PRINCIPAL
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Date
Amount of
Loan
Tlpe of
Loan
Amount of
Principal
Repaid
Maturity
Date
Notation
Made By
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EXHIBIT B
Form of Competitive Bid Quote Request
[Date]
To: JPMorgan Chase Bank (the "Administrative Agent")
From: PacifiCorp
Re 364-Day Credit Agreement (the "Credit Agreement") dated as of June 3,
2003 among the Borrower, the Banks party thereto, HSBC Bank plc, as
Syndication Agent, and the Adminishative Agent
We hereby give notice pursuant to Section 2.03 of the Credit Agreement
that we request Competitive Bid Quotes for the following proposed Competitive
Bid Borrowing(s):
o
Date of Borrowing:
Principal Amount*
$
Interest Period**
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Such Competitive Bid Quotes should offer a Competitive Bid [Margin]
[Absolute Rate]. [The applicable base rate is the London Interbank Offered Rate.]
Terms used herein have the meanings assigned to them in the Credit
Agreement.
PACIFICORP
By
Title:
t Amount must be $10,000,000 or a larger multiple of $1,000,000.
'* Not less than 7 days in the case of either a LIBOR Auction or an Absolute Rate
Auction, or one or two weeks or 1,2,3 or 6 months in the case of a Competitive Bid LIBOR
Loan, subject to the provisions ofthe definition oflnterest Period.
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To:
Re:
EXHIBIT C
Form of Invitation for Competitive Bid Quotes
[Name of Bank]
Invitation for Competitive Bid Quotes to PacifiCorp (the "Borrower")
Pursuant to Section 2.03 of the 364-Day Credit Agreement dated as of
June 3, 2003 among the Bonower, the Banks party thereto, HSBC Bank plc, as
Syndication Agent, and the undersigned, as Administrative Agent, we are pleased
on behalf of the Borrower to invite you to submit Competitive Bid Quotes to the
Borrower for the following proposed Competitive Bid Borrowing(s):
Date of Borrowing:
Principal Amount
$
Interest Period
Such Competitive Bid Quotes should offer a Competitive Bid [Margin]
[Absolute Rate]. [The applicable base rate is the London lnterbank Offered Rate.]
Please respond to this invitation by no later than [2:00 P.M.] [9:30 A.M.]
(New York City time) on [date].
JPMORGAN CHASE BANK
By
Authorized Officer
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EXHIBIT D
Form of Competitive Bid Quote
JPMORGAN CHASE BANK,
as Administrative Agent
270Park Avenue
New York, New York 10017
Attention:
Re: Competitive Bid Quote to PacifiCorp (the "Borrower")
ln response to your invitation on behalf of the Borrower dated
20-_, we hereby make the following Competitive Bid Quote on
the following terms:
l. Quoting Bank:
2. Person to contact at Quoting Bank:
3. Date of Borrowing:
4. We hereby offer to make Competitive Bid Loan(s) in the following
principal amounts, for the following Interest Periods and at the following rates:
o
As specified in the related Invitation.
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Principal
Amount'
Interest
Period'*
Competitive Bid
[Margin*t*][Absolute Rate****]
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$
$
[Provided, that the aggregate principal amount of Competitive Bid Loans for
whichtheaboveoffersmaybeacceptedshallnotexceed$-.]
We understand and agree that the offer(s) set forth above, subject to the
satisfaction of the applicable conditions set forth in the 364-Day Credit
Agreement dated as of June 3,2003 urmong the Borrower, the Banks party thereto,
HSBC Bank plc, as Syndication Agent, and yourselves, as Administrative Agent,
irrevocably obligates us to make the Competitive Bid Loan(s) for which any
offer(s) are accepted, in whole or in part.
Very truly yours,
INAME OF BANKI
Dated:By:
Authorized Officer
' Principal amount bid for each Interest Period rnay not exceed principal amount
requested. Specify aggegate limitation if the sum of the individual offers exceeds the amount the
Bank is willing to lend. Bids must be made for $1,000,000 or a larger multiple thereof.
'* Not less than 7 days in the case of either a Competitive Bid Absolute Rate Loan or a
Competitive Bid LIBOR Loan, or one or two weeks or l, 2, 3 or 6 months in the case of a
Conpetitive Bid LIBOR Loan, as specified in the related Invitation. No more than five bids are
permitted for each Interest Period.
**t Margin over or under the London Interbank Offered Rate determined for the
applicable Interest Period. Specify percentage (rounded to the nearest l/10,000 of l%) and
speciff whether'PLUS" or "MINUS".
Specify rate ofinterest per annum (rounded to the nearest l/10,000th of lo/o).
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EXHIBIT E
OPINION OF
COUNSEL FOR THE BORROWER
[Effective Date]
To the Banks and the Agents
Referred to Below
c/o JPMorgan Chase Bank,
as Administrative Agent
270Park Avenue
New York, New York 10017
Dear Sirs:
We have acted as counsel for PacifiCorp (the "Borrower") in connection
with the 364-Day Credit Agreement, dated as of June 3,2003 among the
Borrower, the Banks party thereto, HSBC Bank plc, as Syndication Agent, and
JPMorgan Chase Bank, as Administrative Agent (the "Credit Agreement").
Terms defined in the Credit Agreement are used herein as therein defined.
We have examined originals or copies, certified or otherwise identified to
our satisfaction, of such documents, corporate records, certificates of public
officials and other instruments and have conducted such other investigations of
fact and law as we have deemed necessary or advisable for purposes of this
opinion. This opinion is being rendered to you at the request of our client
pursuant to Section 3.01(b) of the Credit Agreement.
ln rendering this opinion, we have assumed the genuineness of all
signatures, the authenticity of all documents provided to us as originals and the
conformity to authentic original documents of all documents provided to us as
certified, conformed or photostatic copies. As to questions of fact material to the
following opinions, when relevant facts were not independently established, we
have relied upon representations of the Company within the Credit Agreement,
certificates of officers of the Company and its subsidiaries and certificates of
public officials.
Upon the basis of the foregoing, and subject to the qualifications below we
are of the opinion that:
1. The Borrower is a corporation duly incorporated and validly
existing under the laws of Oregon, and has due corporate right and corporate
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authority to own its properties and to carry on the business in which it is engaged
as described in the Borrower's 2002 Form 10-K.
2. The execution and performance by the Borrower of the Credit
Agreement and the Notes are within the Borrower's corporate powers, have been
duly authoizedby all necessary corporate action, and do not contravene, or
constitute a default under, any provision of applicable law or regulation or of the
Third Restated Articles of Incorporation or Bylaws of the Borrower, in each case
as amended, or, to the best of our knowledge, of any agreement, judgment,
injunction, order, decree or other instrument binding upon the Borrower, or, to the
best of our knowledge, result in the creation or imposition of any Lien on any
asset of the Borrower.
3. The Idaho Public Utilities Commission, the Public Utility
Commission of Oregon and the Utah Public Service Commission have entered
appropriate orders, which, to the best of our knowledge after due inquiry, remain
in full force and effect on the date hereof, authorizing the execution, delivery and
performance by the Borrower of the Credit Agreement; the Public Service
Commission of Wyoming, the Washington Utilities and Transportation
Commission and the California Public Utilities Commission have each entered
appropriate orders exempting from such commissions' authorizationrequirements
(or, in the case of Washington, confirming compliance with RCW 580.08.040)
with respect to the execution, delivery and performance by the Borrower of the
Credit Agreement; and such orders constitute the only approval, authorization,
consent or other order of any govemmental body legally required for the
authorization of the execution, delivery and performance by the Borrower of the
Credit Agreement.
4. The Credit Agreement constitutes a valid and binding agreement of
the Borrower and each Note constitutes a valid and binding obligation of the
Borrower, in each case enforceable in accordance with its terms, except as the
foregoing may be limited by bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium, or other similar laws affecting the rights of creditors
generally and by general principles of equity, including those limiting the
availability of specific performance, injunctive relief, and other equitable
remedies and those providing for defenses based on fairness and reasonableness,
regardless of whether considered in a proceeding in equity or at law.
5. There is no action, suit or proceeding pending against, or to the
best of our knowledge threatened against, the Borrower before any court or
arbitrator or any governmental body, agency or official, (i) in which there is a
reasonable possibility of an adverse decision which would materially adversely
affect the ability of the Borrower to meet its commitments under the Credit
Agreement (except as disclosed in the Borrower's 2002 Form 10-K or the
Borrower's quarterly reports on Form t0-Q for the Fiscal Quarters ended June 30,
2002, September 30,2002 and December 31, 2002) or (ii) which in any manner
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draws into question the validity or enforceability of the Credit Agreernent or the
Notes.
6. The Borrower is not an "investment company" within the
meaning of the Investment Company Act of 1940, as amended.
The opinions herein expressed are limited to matters govemed by the laws
of the United States of America and the State of Oregon and, as to the opinions
expressed in paragraph 3, the laws of the States of Arizona, California, Colorado,
Idaho, Utah, Washington and Wyoming, in each case as they exist at the date
hereof, and we express no opinion as to the law of any other jurisdiction. With
regard to the opinion expressed in paragraph 3, the Borrower's authority to
borrow under the Credit Agreement will terminate, under certain of such
regulatory filings, if there are certain decreases in the ratings of the Borrower's
senior secured debt, and the Borrower may not borrow after April 30,2004, or
permit the expiration date of a Letter of Credit to be later than April 30,2004,
without obtaining a renewal of its authority from the Idaho Public Utilities
Commission. In addition, please note that the Borrower may be required to file a
Certificate of Notification on Form U-68-2 with the Securities and Exchange
Commission after utilization of the Credit Agreement. In rendering the opinion
set forth in paragraph 4, we have assumed that the laws of the State of Oregon
would apply despite selection of New York law under Section 9.09 of the Credit
Agreement.
In giving the foregoing opinions, we express no opinions as to the effect
(if any) of any law of anyjurisdiction in which any Bank is located which limits
the rate of interest that such Bank may charge or collect or as to the enforceability
of provisions in the Credit Agreement providing for the payment of interest on
overdue interest.
This opinion is rendered solely to you in connection with the above-
referenced matter. This opinion may not be relied upon by you for any other
purpose or relied upon by or furnished to any other person without our prior
written consent.
Very truly yours,
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EXHIBIT F
OPINION OF
DAVIS POLK & WARDWELL, SPECIAL COUNSEL
FOR THE ADMINISTRATIVE AGENT
[Effective Date]
To the Banks and the Agents
Referred to Below
c/o JPMorgan Chase Bank,
as Administrative Agent
270Park Avenue
New York, New York 10017
Dear Sirs:
We have participated in the preparation of the 364-Day Credit Agreement
(the "Credit Agreement") dated as of June 3,2003 among PacifiCorp, an Oregon
corporation (the "Borrower"), the banks party thereto (the "Banks"), HSBC
Bank plc, as Syndication Agent, and JPMorgan Chase Bank, as Administrative
Agent (the "Administrative Agent"), and have acted as special counsel for the
Administrative Agent for the purpose of rendering this opinion pursuant to
Section 3.01(c) of the Credit Agreement. Terms defined in the Credit Agreement
are used herein as therein defined.
We have examined originals or copies, certified or otherwise identified to
our satisfaction, of such documents, corporate records, certificates of public
officials and other instruments and have conducted such other investigations of
fact and law as we have deemed necessary or advisable for purposes of this
opinion.
Upon the basis of the foregoing, we are of the opinion that, assuming that
the execution, delivery and performance by the Borrower of the Credit Agreement
and the Notes are within the Borrower's corporate powers and have been duly
authorized by all necessary corporate action, the Credit Agreement constitutes a
valid and binding agreement of the Borrower, and each Note delivered on the date
hereof constitutes a valid and binding obligation of the Borrower, in each case
enforceable in accordance with its terms, except as the same may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights generally and by
general principles of equity.
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We are members of the Bar of the State of New York and the foregoing
opinion is limited to the laws of the State of New York. In giving the foregoing
opinion, we express no opinion as to the effect (if any) of any law of any
jurisdiction (except the State of New York) in which any Bank is located which
limits the rate of interest that such Bank may charge or collect.
This opinion is rendered solely to you in connection with the above
matter. This opinion may not be relied upon by you for any other purpose or
relied upon by or furnished to any other person without our prior written consent.
Very truly yours,
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EXHIBIT G
ASSIGNMENT AND ASSUMPTION AGREEMENT
AGREEMENT dated as of_,z}_among [ASSIGNOR] (the
"Assignor'), [ASSIGNEE] (the "Assignee") and PACIFICORP (the
"Borrower").
WITNESSETH
WHEREAS, this Assignment and Assumption Agreement (the
"Agreement") relates to the 364-Day Credit Agreement dated as of June 3,2003
(the "Credit Agreement") among the Borrower, the Assignor, the other Banks
party thereto, HSBC Bank plc, as Syndication Agent, and JPMorgan Chase Bank,
as Administrative Agent (the "Administrative Agent");
WHEREAS, as provided under the Credit Agreement, the Assignor has a
Commitment to make Committed Loans to the Borrower in an aggregate principal
amount at any time outstanding not to exceed $
WHEREAS, Committed Loans made to the Borrower by the Assignor
under the Credit Agreement in the aggregate principal amount of $_
are outstanding at the date hereof;
WHEREAS, the Assignor has Letter of Credit Liabilities in an aggregate
amountof$-undertheCreditAgreementatthedatehereof;and
WHEREAS, the Assignor proposes to assign to the Assignee all of the
rights of the Assignor under the Credit Agreement in respect of a portion of its
Commitment thereunder in an amount equal (the "Assigned
Amount"), together with a corresponding portion of its outstanding Committed
Loans and Letter of Credit Liabilities, and the Assignee proposes to accept
assignment of such rights and assume the corresponding obligations from the
Assignor on such terms;
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements contained herein, the parties hereto agree as follows:
SecnoN l. Definitions. All capitalized terms not otherwise defined
herein have the respective meanings set forth in the Credit Agreement.
SecrIoN 2. Assignment. The Assignor hereby assigns and sells to the
Assignee all of the rights of the Assignor under the Credit Agreement to the
extent of the Assigned Amount, and the Assignee hereby accepts such assignment
from the Assignor and assumes all of the obligations of the Assignor under the
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Credit Agreement to the extent of the Assigned Amount, including the purchase
from the Assignor of the corresponding portion of each of its outstanding
Committed Loans and of its Letter of Credit Liabilities at the date hereof. Upon
the execution and delivery hereof by the Assignor, the Assignee and the Borrower
and the payment of the amounts specified in Section 3 required to be paid on the
date hereof (i) the Assignee shall, as of the date hereof, succeed to the rights and
be obligated to perform the obligations of a Bank under the Credit Agreement
with a Commitment in an amount equal to the Assigned Amount and acquire the
rights of the Assignor with respect to a corresponding portion of each of its
outstanding Committed Loans and of its Letter of Credit Liabilities, and (ii) the
Commitment of the Assignor shall, as of the date hereof, be reduced by a like
amount and the Assignor released from its obligations under the Credit
Agreement to the extent such obligations have been assumed by the Assignee.
The assignment provided for herein shall be without recourse to the Assignor.
SncrtoN 3. Paymenls. As consideration for the assignment and sale
contemplated in Section 2 hereof, the Assignee shall pay to the Assignor on the
datehereofinFederalfundsanamountequalto$-.-Itisunderstood
that facility fees accrued to the date hereof are for the account of the Assignor and
such fees accruing from and including the date hereof are for the account of the
Assignee. Each of the Assignor and the Assignee hereby agrees that if it receives
any amount under the Credit Agreement which is for the account of the other
party hereto, it shall receive the same for the account of such other party to the
extent of such other party's interest therein and shall promptly pay the same to
such other party.
[SncrloN 4. Consent of the Borrower. This Agreement is conditioned
upon the consent of the Borrower pursuant to Section 9.06(c) of the Credit
Agreement. The execution of this Agreement by the Borrower is evidence of this
consent.]*'
SecloN 5. Note. Pursuant to Section 9.06(c) of the Credit Agreement, the
Borrower agrees, if requested by the Assignee, to execute and deliver a Note
payable to the order of the Assignee to evidence the assignment and assumption
provided for herein.
SrcrtoN 6. Non-Reliance on Assignor. The Assignor makes no
representation or warranty in connection with, and shall have no responsibility
with respect to, the solvency, financial condition, or statements of the Borrower
or the validity and enforceability of the obligations of the Borrower in respect ol
the Credit Agreement or any Note. The Assignee acknowledges that it has,
*
Amotrnt should combine principal together with accrued interest and breakage
corrpensation, if any, to be paid by the Assignee. It may be preferable in an appropriate case to
specify these amounts generically or by formula rather than as a fixed sum.
" Delete if consent of the Borrower is not required.
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independently and without reliance on the Assignor, and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement and will continue to be
responsible for making its own independent appraisal of the business, affairs and
financial condition of the Borrower.
SscrtoN 7. Governing Law. This Agreement shall be govemed by and
construed in accordance with the laws of the State of New York.
SBcuoN 8. Counterparrs. This Agreement may be signed in any number
of counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their duly authorized officers as of the date first above
written.
IASSTGNORI
Name:
Title:
[ASSIGNEE]
Name:
Title:
PACIFICORP
By:
Name:
Title:
By:
By:
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