20071031Report of Credit Agreement.pdf

October 31 2007 2GI11 GCI 3 \r ,',
' "-""
~\n .,)v
Pacific Power
PacifiCorp Energy
Rocky Mountain Power
825 NE Multnomah, Suite 1900 LCT
Portland. Oregon 97232
~~~ t~t~Qo HEGEl
\0 /jJ\C ry:q\~\~ii c; (~\O:
\::.
'1""1\'11:;:"'" '
unu \
::;J'--
VL4 OVERNIGHT MAIL
Idaho Public Utilities Commission
Statehouse
472 West Washington Street
Boise, ID 83720
Attn: Ms, Jean D. Jewell
Commission Secretary
Re:Case P AC-O6-
Order No. 29999
Report of Credit Agreement for Short-Term Debt
Dear Commissioners:
Pursuant to the referenced Order, PacifiCorp submits to the Commission one verified copy
of:
The $700 000 000 Credit Agreement dated as of October 23, 2007 among PacifiCorp, the
Banks party thereto and The Royal Bank of Scotland pIc as Syndication Agent and Union
Bank of California, N., as Administrative Agent.
Because PacifiCorp has not issued any new security in connection with the referenced
transaction, no Report of Securities Issued is enclosed.
Under penalty of perjury, I declare that I know the contents of the enclosed document, and it is
true, correct, and complete.
Please contact me if you have any questions about this letter or the enclosed document.
Sincerely,
Bruce N. Williams
Vice President and Treasurer
Enclosure
S:\CORP JIN\Administrative Asst\Bruce\ID Report of Oct 2007 Credit Agreementdoc
EXECUTfm.~jtRSION
ZO01 OCT 3 I AI'! 10: 33
$700 000 000 iCit,j'i(j PlIH! IC
UT!UYIE:fC(ij;Jrf~4JSS!Oi
CREDIT AGREEMENT
dated as of
October 23, 2007
among
PacifiCorp,
The Banks Party Hereto
The Royal Bank of Scotland pIc
as Syndication Agent
and
Union Bank of California, N.
as Administrative Agent
Citibank, N., Sun Trust Bank and Wells Fargo Bank, National Association
Co- Documentation Agents
RBS Securities Corporation and
Union Bank of California, N.
Co-Lead Arrangers and Joint Bookrunners
(NY) 18007ll56/CA/ca,07,doc
Table of Contents
Page
ARTICLE
DEFINITIONS
Section 1.01. Definitions........................................................................................
Section 1.02. Accounting Terms and Determinations .......................................... 13
Section 1.03. Types of Borrowings.......................................................................
ARTICLE 2
THE CREDITS
Section 2.01. Commitments to Lend; Extension of Commitments........................
Section 2.02. Notice of Committed Borrowings...................................................
Section 2.03. Competitive Bid Borrowings. ......................................................... 15
Section 2.04. Notice to Banks; Funding of Loans .............................................". 19
Section 2.05. Notes...............................................................................................
Section 2.06. Maturity of Loans
...........................................................................
Section 2.07. Interest Rates..................................................................................
Section 2.08. Method of Electing Interest Rates .................................................. 22
Section 2.09. Fees................................................................................................
Section 2.10. Optional Termination or Reduction of Commitments .................... 24
Section 2.11. Mandatory Termination of Commitments ..............."..................... 24
Section 2.12. Optional Prepayments
....................................................................
Section 2.13. General Provisions as to Payments................................................
Section 2.14. Funding Losses...............................................................................
Section 2.15. Computation of Interest and Fees ............................".................... 25
Section 2.16. Regulation D Compensation
..........................................................
Section 2.17. Letters of Credit.............................................................................
Section 2.18. Increased Commitments; Additional Banks.
..................................
ARTICLE 3
CONDITIONS
Section 3.01. Effectiveness...................................................................................
Section 3.02. Borrowings and Issuances of Letters of Credit..............................
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
Section 4.01. Corporate Existence and Power.....................................................
Section 4.02. Corporate and Governmental Authorization; No Contravention..
Section 4.03. Binding Effect.................................................................................
Section 4.04. Financial Information....................................................................
Section 4.05. Litigation..
""""""
............ .............................. ..... ........................... 36
Section 4.06. Environmental Matters...................................................................
Section 4.07. Compliance with ERISA
.................................................................
(NY) 18007/156/CA/ca,O7.doc
Section 4.08. Taxes...... .............. ........ ..... ................. ........ .......... ............. ....... ....... 36
Section 4.09. Not an Investment Company..........................................................
Section 4.10. Insurance........................................................................................
ARTICLE 5
COVENANTS
Section 5.01. Information.....................................................................................
Section 5.02. Maintenance of Property; Insurance ..........................................,.. 39
Section 5.03. Conduct of Business and Maintenance of Existence ...................... 39
Section 5.04. Compliance with Laws
...................................................................
Section 5.05. Total Debt.......................................................................................
Section 5.06. Negative Pledge..............................................................................
. Section 5.07. Consolidations, Mergers and Sales of Assets.................................
Section 5.08. Use of Proceeds..............................................................................
Section 5.09. Guarantees.....................................................................................
ARTICLE 6
DEFAULTS
Section 6.01. Events of Default.............................. ......."..................................... 41
Section 6.02. Notice of Default ............................................................................ 44
Section 6.03. Cash Cover.....................................................................................
ARTICLE 7
THE ADMINISTRATIVE AGENT
Section 7.01. Appointment and Authorization
.....................................................
Section 7.02. Administrative Agent and Affiliates................................................
Section 7.03. Action by Administrative Agent......................................................
Section 7.04. Consultation with Experts
..............................................................
Section 7.05. Liability of Administrative Agent ................................................... 45
Section 7.06. Indemnification...............................................................................
Section 7.07. Credit Decision...............................................................................
Section 7.08. Successor Administrative Agent
.....................................................
Section 7.09. Administrative Agent s Fee ............................................................ 46
Section 7.10. Syndication Agent..........................................................................
ARTICLE 8
CHANGE IN CIRCUMSTANCES
Section 8.01. Basis for Determining Interest Rate Inadequate or Unfair............
Section 8.02. Illegality ......................................................................................... 47
Section 8.03. Increased Cost and Reduced Return ....................,......................... 48
Section 8.04. Taxes...................................................
............................................
Section 8.05. Base Rate Loans Substituted for Affected Fixed Rate Loans ."...... 51
Section 8 .06. Substitution of Bank........................................................................
(NY) 18007ll56/CNca,O7.doc
ARTICLE 9
MISCELLANEOUS
Section 9.01. Notices............................................................................................
Section 9.02. No Waivers ......................................................."............................ 52
Section 9.03. Expenses; Indemnification .............................................."............. 52
Section 9.04. Set-Offs; Sharing
............................................................................
Section 9.05. Amendments and Waivers ..............................................."............. 54
Section 9.06. Successors and Assigns ........................................................,......... 54
Section 9.07. Confidentiality................................................................................
Section 9.08. Collateral.......................................................................................
Section 9.09. GOVERNING LA W; SUBMISSION TO JURISDICTION.............
Section 9.1 O. Counterparts; Integration..............................................................
Section 9.11. USA PATRIOT Act Notice..............................................................
EXHIBITS
Commitment Schedule
Pricing Schedule
Exhibit A
Exhibit B
Exhibit C
Exhibit D
Exhibit E-
Exhibit E-
Exhibit F
Exhibit G
Exhibit H
- Note
- Competitive Bid Quote Request
- Invitation for Competitive Bid Quotes
- Competitive Bid Quote
- Opinion of Internal Counsel for the Borrower
- Opinion of Counsel for the Borrower
- Opinion of Special Counsel for the Agent
- Assignment and Assumption Agreement
- Extension Agreement
111
(NY) 1800711 56/CNca,07,doc
CREDIT AGREEMENT
CREDIT AGREEMENT dated as of October 23 2007 among
P ACIFICORP , the BANKS party hereto, THE ROY AL BANK OF SCOTLAND
PLC, as Syndication Agent and UNION BANK OF CALIFORNIA, N., as
Administrative Agent.
The parties hereto agree as follows:
ARTICLE
DEFINITIONS
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 UBOC in its capacity as administrative
agent for the Banks hereunder, and its successors in such capacity.
Agency Office" means the office of the Administration Agent specified
in or pursuant to Section 9.01.
Agent" means the Administrative Agent or the Syndication Agent.
Agreement" means this Agreement, 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).
(NY) 18007/156/CNca.07,doc
Authorized Officer" means (i) the Chief Executive Officer of the
Borrower, (ii) the Chief Financial Officer of the Borrower, (iii) the Treasurer of
the Borrower or (iv) any other officer ofthe Borrower designated as such by two
or more of the officers referred to in clauses (i) through (iii) 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
06(c), and their respective successors.
Base Rate" means, for any day, a rate per annum equal to the higher of
(i) the Reference Rate for such day and (ii) the sum of 1/2 of 1 % plus the Federal
Funds Rate for such day.
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.
Borrower" means PacifiCorp, an Oregon corporation, and its successors.
Borrower s 2006 Form 10-K" means the Borrower s annual report on
Form 1 O-K for the nine months ended December 31 , 2006 , 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.
Capitalized 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 of such 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).
Cash Collateralize" means to pledge and deposit with or deliver to the
Issuing Bank, as collateral for the applicable outstanding Letter of Credit, cash or
deposit account balances pursuant to documentation in form and substance
reasonably satisfactory to the Issuing Bank. The Borrower hereby grants to the
Issuing Bank, for the benefit of the Issuing Bank and the Banks, a security interest
in all such cash, deposit accounts and all balances therein and all proceeds of the
foregoing. Cash collateral shall be maintained in blocked interest bearing (to the
extent available) deposit accounts at the Issuing Banle
(NY) 18007l156/CNca.07,doc
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 Commitment and (ii) with respect to each Additional Bank or
Assignee which becomes a Bank pursuant to Section 2.18 06 or 9.06(c), the
amount of the Commitment thereby assumed by it, in each case as such amount
may from time to time be reduced pursuant to Section 8.06 or 9.06(c) or increased
pursuant to Section 2.06 or 9.06(c).
Commitment Schedule means the Commitment Schedule attached
hereto.
Committed Loan means a loan made by a Bank pursuant to Section
01(a); provided that, if any such loan or loans (or portions thereof) are
combined or subdivided pursuant to a Notice of Interest 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.
Commodity 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 or natural
gas and (ii) which is utilized by the Borrower to hedge its excess or shortage of
net electricity or natural gas for future months.
Competitive Bid Absolute Rate has the meaning set forth in Section
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 Office 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 Offices for its Competitive Bid LIB OR 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 LIB OR Auction (including such a loan bearing interest at the
Base Rate pursuant to Section 8.01(a)).
Competitive Bid Loan means a Competitive Bid LIB OR Loan or a
Competitive Bid Absolute Rate Loan.
Competitive Bid Margin has the meaning set forth in Section 2.03(d).
(NY) I 8007/1 56/CNca.07,doc
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. Solely for the purpose of caIculating compliance with the
requirements of Section 5., Debt shall not include Debt ofthe Borrower or its
Consolidated Subsidiaries arising from the application of Financial Interpretation
Number 45 ofthe Financial Accounting Standards Board, Financial Interpretation
Number 46 ofthe Financial Accounting Standards Board or Issue No. 01-08 of
the Emerging Issues Task Force (EITF).
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 the location of the Agency Office are
authorized by 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.
Effective Date" means the date on which the Commitments become
effective pursuant to Section 3.01.
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
(NY) 18007/156/CNca.07.doc
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 common control
which, together with the Borrower, are treated as a single employer under Section
414 of the Internal Revenue Code.
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 2.07(b) 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 reserve requirement for a member bank of the Federal
Reserve System in New York City with deposits exceeding five billion dollars in
respect of "Eurocurrency 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.
Federal Funds Rate" means, for any day, the rate per annum (rounded
upwards, if necessary, to the nearest lIl00th of 1 %) equal to the weighted average
(NY) 18007/156/CNca,07.doc
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 UBOC on such day on such transactions as
determined by the Administrative Agent.
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
(NY) 18007l156/CNca,07,doc
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.
Increased Commitments has the meaning set forth in Section 2.18.
Indemnitee has the meaning set forth in Section 9.03(b).
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 Interest Rate
Election and ending one, two, three or six months thereafter as the Borrower may
elect in such notice; provided that:
(a) any Interest 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 Interest 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.
(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 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) anyone-month, two-month, three-month or six-month Interest
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.
(NY) 18007/156/CA/ca.07,doc
(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 Section 2.03; provided that:
(a) any Interest 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; and
(b) no Interest Period shall end after the Termination Date.
Internal Revenue Code" means the Internal 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 any 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.
LC Cut-Off Date" means the tenth Domestic Business Day prior to the
Termination Date.
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.
LIB OR 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
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.
(NY) 18007/156/CNca,07,doc
London Interbank Offered Rate has the meaning set forth in Section
07(b ).
Material Debt" means Debt of the Borrower arising under a single or
series of related instruments or other agreements 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.
MidAmerican means MidAmerican Energy Holdings Company or any
wholly-owned subsidiary thereof that owns the common stock of the Borrower.
Multiemployer Plan means at any time an employee pension benefit
plan within the meaning of Section 4001(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 ofthe 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
ofthe 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.
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 anyone of such promissory notes issued hereunder.
(NY) 18007/156/CA/ca.07.doc
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
08.
Notice of Issuance" means any notice delivered pursuant to Section
17(b) hereof.
Parent" means, with respect to any Bank, any Person controlling such
Banle
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, an
association, a trust or any other entity or organization, including a government or
political subdivision or an agency or instrumentality 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 ERISA 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.
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.
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 Termination Date; and (iv) all other characteristics (except
interest rate) materially no less favorable to the Borrower than the Borrower s 8
1/4% Junior Subordinated Deferrable Interest Debentures, Series C maturing on
(NY) 18007/156/CNca.07,doc
June 30, 2036 and described in PacifiCorp Capital I's Prospectus Supplement
dated June 6, 1996.
Quarterly Payment Date" means each March 31 , June 30, September
30 and December 31.
RBS" mean The Royal Bank of Scotland pic, and its successors.
Reference Rate" means the variable rate of interest per annum
established by UBOC from time to time as its "reference rate . Such "reference
rate" is set by UBOC as a general reference rate of interest, taking into account
such factors as UBOC may deem appropriate, it being understood that many of
UBOC's commercial or other loans are priced in relation to such rate , that it is not
necessarily the lowest or best rate actually charged to any customer and that
UBOC may make various commercial or other loans at rates of interest having no
relationship to such rate. For purposes of this Agreement, each change in the
Reference Rate shall be effective as ofthe opening of business on the date
announced as the effective date of any change in such "reference rate
Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
Reimbursement Obligation" has the meaning specified in Section
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.
Subsidiary" means any corporation or other entity of which securities or
other ownership interests having ordinary voting power to elect a majority ofthe
board of directors or other persons performing similar functions are at the time
directly or indirectly owned by the Borrower.
Syndication Agent" means RBS in its capacity as syndication agent in
respect ofthis Agreement, and its successors in such capacity.
Tangible Net Worth" means at any date the consolidated shareholders
equity of the Borrower and its Consolidated Subsidiaries less their Intangible
Assets, all determined as of such date. For purposes ofthis definition "Intangible
Assets" means the amount (to the extent reflected in 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
December 31 , 2006 in the book value of any asset owned by the Borrower or its
Consolidated Subsidiaries, (ii) 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
(NY) 18007/156/CNca.07.doc
(iii) goodwill, patents, trademarks, service marks, trade names, copyrights
organization or developmental expenses and other intangible items.
Termination Date" means, for each Bank, its Commitment and any
Loans made by it, October 23 2012, as such date may be extended from time to
time with respect to such Bank pursuant to Section 2.01(c) or, if such day is not a
Euro-Dollar Business Day, the next preceding Euro-Dollar Business Day.
Total Capitalization" at any date means, without duplication and after
intercompany eliminations among the Borrower and its Consolidated
Subsidiaries, the sum of (i) all Debt of the Borrower and its Consolidated
Subsidiaries, (ii) preferred stock ofthe Borrower and (iii) common stock equity of
the Borrower, 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 15% of Total
Capitalization.
Total Commitment" means at any time the aggregate amount ofthe
Commitments of all Banks at such time (as such Commitments maybe reduced
from time to time pursuant to Section 2.1 0 hereof). The initial amount ofthe
Total Commitment is $700 000 000.
Total Debt" at any date means, without duplication and after
intercompany eliminations among the Borrower and its Consolidated
Subsidiaries, the sum of (i) all Debt ofthe Borrower and its Consolidated
Subsidiaries (other than Qualifying Junior Subordinated Debt) and (ii) any portion
of mandatorily redeemable preferred stock of the Borrower or any of its
Consolidated Subsidiaries 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
plus without duplication, (ii) the aggregate amount of the Letter of Credit
Liabilities of all Banks at such time.
UBOC" means Union Bank of California, N., and it successors.
Umbrella Mortgage" means the Indenture of Mortgage and Deed of
Trust dated as of January 9 1989 between the Borrower and JPMorgan Chase
Bank, N.A. (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
(NY) 18007/156/CNca.07.doc
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 IV 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 consolidated
financial statements ofPacifiCorp and its Consolidated Subsidiaries.
Section 1.03. Types of Borrowings. The term "Borrowing" denotes the
aggregation of Loans of one or more Banks made or to be made to the Borrower
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.
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.a "Committed Borrowing" is a Borrowing under Section 2.
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).
(NY) 18007/156/CA/ca,07,doc
Section 1.04. Times of Day. Unless otherwise specified, all references
herein to times of day shall be references to Pacific time (daylight or standard, as
applicable) at the Agency Office.
ARTICLE 2
THE CREDITS
Section 2.01. Commitments to Lend; Extension of Commitments. (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
anyone 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. Within the
foregoing limits, the Borrower may borrow under this Section 2.01 (a), repay, or to
the extent permitted by Section 2., prepay Loans and reborrow at any time prior
to the Termination Date under this Section 2.01(a).
(b) Each Borrowing under this Section 2.01 shall be in an aggregate
principal amount of $1 0 000 000 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.
(c) The Borrower may, upon notice to the Administrative Agent not less
than 60 days but no more than 90 days prior to the first and/or the second
anniversary of the Effective Date, propose to extend the Termination Date for an
additional one-year period measured from the Termination Date then in effect.
The Administrative Agent shall promptly notify each Bank of receipt of such
request, and each Bank shall endeavor to respond to such request, whether
affirmatively or negatively (such determination in the sole discretion of such
Bank), by notice to the Borrower and the Administrative Agent within 30 days.
Any Bank which does not give such notice to the Borrower and the
Administrative Agent shall be deemed to have elected notto extend as requested
and the Commitment of each non-extending Bank shall terminate on its
Termination Date determined without giving effect to such requested extension.
The Borrower may, in accordance with Section 8., designate another bank or
other financial institution (which may be, but need not be, an extending Bank) to
replace a non-extending Bank.
(d) Any extension of the Commitments pursuant to this Section shall be
subject to satisfaction ofthe following conditions:
(i) before and after giving effect to such extension, all
representations and warranties contained in Article 4 shall be true;
(NY) 18007/156/CNca,07.doc
(ii) at the time of such extension, no Default shall have
occurred and be continuing or would result ITom such extension; and
(iii) receipt by the Administrative Agent of counterparts of an
Extension Agreement in substantially the form of Exhibit H hereto (the
Extension Agreement"duly completed and signed by the Borrower, the
Administrative Agent and all of the Banks which have responded
affirmatively, which Banks shall have at least 51 % of the aggregate
amount of the Commitments.
Section 2.02. Notice of Committed Borrowings. The Borrower shall give
the Administrative Agent notice (a Notice of Committed Borrowing not later
than 9:00 AM. on (x) the date of each Base Rate Borrowing and (y) the third
Euro-Dollar Business Day before each Euro-Dollar Borrowing, specifying:
(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
Interest Period applicable thereto, subject to the provisions of the definition of
Interest Period.
Section 2.03. Competitive Bid Borrowings.
(a) The Competitive Bid Option. In addition to Committed Borrowings
pursuant to Section 2., the Borrower may, as set forth in this Section, request
the Banks to make offers to make Competitive Bid Loans to the Borrower ITom
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 9:00 AM. 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:
(NY) 18007/156/CNca.07.doc
(i) the proposed date of Borrowing, which shall be a
Euro-Dollar Business Day in the case of a LIB OR 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 Interest Period, and
(iv) whether the Competitive Bid Quotes requested are to set
forth a Competitive Bid Margin or a Competitive Bid Absolute Rate.
The Borrower may request offers to make Competitive Bid Loans for
more than one Interest 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) 11 :00 A.M. on the fourth Euro-Dollar Business Day prior to the
proposed date of Borrowing, in the case of a LIBOR Auction or (y) 6:30 AM.
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 affiliate 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
(NY) 18007/156/CA/ca.07.doc
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
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 Interbank Offered Rate (the
Competitive Bid Margin ) offered for each such Competitive
Bid Loan (expressed as a percentage rate per annum in the form of
a decimal to no more than four decimal places) 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 (expressed as a percentage rate per annum in
the form of a decimal to no more than four decimal places) (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 Interest 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)
language;
contains qualifying, conditional or similar
(C) proposes terms other than or in addition to those
set forth in the applicable Invitation for Competitive Bid Quotes;
(NY) 18007/156/CNca.07,doc
(D)arrives after the time set forth in subsection (d)(i).
(e) Notice to Borrower. The Administrative Agent shall promptly
notify the Borrower ofthe 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
the related Competitive Bid Quote Request, (B) the respective principal amounts
and Competitive Bid Margins or Competitive Bid Absolute Rates, as the case may
, 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.
(f) Acceptance and Notice by Borrower. Not later than 9:00 AM. on
(x) the third Euro-Dollar Business Day prior to the proposed date of Borrowing,
in the case of a LIB OR 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 LIB OR 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 ofthe 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 Interest Period that are
accepted. The Borrower may accept any Competitive Bid Quote in whole or in
part; provided that:
(i) 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 (d)(iii) or that otherwise fails to comply with the requirements
of this Agreement, and
(NY) 18007/156/CNca,07.doc
(v) 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 Interest 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.
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 Banks; 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 12:00 Noon 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 immediately
available funds, to the Administrative Agent at the Agency Office. 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) 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 10:00 AM. 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 agree 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, a rate 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
07 and (ii) in the case of such Bank, the Federal Funds Rate for such day.
such Bank shall repay to the Administrative Agent such corresponding amount
(NY) 18007/156/CA/ca.07,doc
such amount so repaid shall constitute such Bank's Loan included in such
Borrowing for purposes of this Agreement.
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 type. 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 Committed Loan shall mature
and the principal amount thereof shall be due and payable (together with interest
accrued thereon) on the Termination Date.
(b) 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 a rate 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
a rate per annum equal to the sum of 1 % plus the Base Rate for such day.
(b) Each Euro-Dollar Loan shall bear interest on the outstanding
principal amount thereof, for each day during each Interest Period applicable
thereto, at a rate per annum equal to the sum ofthe Euro-Dollar Margin for such
day plus the London Interbank Offered Rate applicable to such Interest Period.
(NY) 18007/156/CNca,07,doc
Such interest shall be payable for each Interest 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 a rate per annum determined in accordance
with the Pricing Schedule.
London Interbank Offered Rate" applicable to any Interest Period
means the rate per annum equal to the British Bankers Association LIBOR Rate
BBA LIB OR ) from Telerate Successor Page 3750, as published by Reuters (or
other commercially available source providing quotations ofBBA LIBOR as
designated by the Administrative Agent from time to time) at approximately
11 :00 a., 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 Interest 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 Interest Period shall be the rate at which dollar deposits of
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., 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
(ii) 1 % 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 Interest Period
applicable thereto, at a rate per annum equal to the sum of the London Interbank
Offered Rate for such Interest 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 Interest 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 thereof and, if such Interest 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 a rate per annum equal to
the sum of 1 % plus the Base Rate for such day.
( 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
(NY) 18007/156/CNca.07.doc
determined, and its determination thereof shall be conclusive in the absence of
manifest error.
Section 2.08. Method of Electing Interest Rates. (a) The Loans included
in each Committed Borrowing shall bear interest initially at the type 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 9:00 AM. on
the third Euro-Dollar Business Day before the conversion or continuation selected
in such notice is to be effective. A Notice ofInterest Rate Election may, if it so
specifies, apply to only a portion ofthe 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 Loans). Ifno 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 Interest Period.
(b)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
(iv) if such Loans are to be continued as Euro-Dollar Loans for
an additional Interest Period, the duration of such additional Interest
Period.
(NY) 18007/156/CNca.07.doc
Each Interest Period specified in a Notice of Interest Rate Election shall
comply with the provisions of the definition of Interest Period.
( c) Promptly after receiving aN otice 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) ifthe 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 Banle
(c) Accrued fees under this Section shall be payable quarterly in arrears
on each Quarterly Payment Date, beginning December 31 , 2007, and on the
Termination Date (and, iflater, the date the Total Outstanding Amount shall be
reduced to zero). If the Commitments are terminated in their entirety, all fees
accrued under this Section to but excluding the effective date of such termination
shall be payable on such date.
(NY) 18007/156/CNca.07.doc
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 aggregate amount of at least $10 000 000 or any larger multiple
of$I OOO OOO, 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 notice
to the Administrative Agent not later than 9:00 AM. on the Domestic Business
Day prior to the date of prepayment, prepay any Group of Base Rate Loans (or
any Competitive Bid Borrowing 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 paying 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., the Borrower may, upon notice to the
Administrative Agent not later than 9:00 AM. on the third Euro-Dollar Business
Day prior to the date of prepayment, prepay any Group of Euro-Dollar Loans in
whole at any time by paying 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 ofthe
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 9:00 AM. on the date when due, in Federal or other
immediately available funds, to the Administrative Agent at the Agency Office
without set-off or counterclaim. 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 ofthe 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 Business Day, the date for payment thereof
shall be extended to the next succeeding Domestic Business Day. Whenever any
(NY) 18007/156/CNca,07,doc
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 Borrower makes any payment of
principal with respect to any Fixed Rate Loan or any Fixed Rate Loan is
converted to a different type of Loan (whether such payment or conversion is
pursuant to Section 2., Article 6 , Article 8 or otherwise) on any day other than
the last day ofthe Interest Period applicable thereto, or the end of an applicable
period fixed pursuant to Section 2.07(c), or ifthe 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
Reference 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
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).
(NY) 18007/156/CNca.07.doc
Section 2.16. Regulation D Compensation. If and so long as a reserve
requirement ofthe 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 Euro-Dollar Loan at a
rate per annum determined by such Bank up to but not exceeding the excess of (i)
(A) the applicable London Interbank Offered Rate divided by (B) one minus 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 notify the Borrower and the Administrative Agent, in which case such
additional interest on the Euro-Dollar Loans 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 notify 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
Credit. Subject to the terms and conditions hereof, each Issuing Bank agrees to
issue Letters of Credit from time to time 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
aggregate 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 Commitment bears to the Total Commitment; provided that (i)
if the scheduled Termination Date of a Bank falls prior to the expiry date of a
Letter of Credit then outstanding (because the Commitments of the other Banks
have been extended in accordance with Section 2.01(c)), such Bank'
participation in such Letter of Credit shall terminate on such Termination Date
and the participations of the other Banks therein shall be redetermined pro rata in
proportion to their Commitments after giving effect to the termination of the
Commitment of such former Bank and (ii) if and to the extent necessary to permit
such redetermination of the participations in Letters of Credit within the limits of
the Commitments which are not terminated on such date, the Borrower shall
prepay on such date all or a portion ofthe outstanding Loans and/or secure
cancellation of outstanding Letters of Credit, and such redetermination and
termination of participations in outstanding Letters of Credit shall be conditioned
upon its having done so.
(b)Method for 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
(NY) 18007/1 56/CA/ca,07.doc
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 non extension) 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 given in connection with the
extension of a Letter of Credit, a "Notice of Issuance ). Upon receipt of
Notice of Issuance, the Issuing Bank shall promptly notify the
Administrative Agent, and the Administrative Agent shall promptly notify
each Bank of the contents thereof and of the amount of such Bank'
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
, 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 instruments 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.
(iii) 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 given by the Issuing Bank, the Issuing Bank
shall timely give such notice oftermination 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 pursuant to a renewal or
extension thereof) on a date later than the first anniversary of the
Termination Date.
(iv) If, at the LC Cut-Off Date, any Letter of Credit for any
reason remains outstanding and partially or wholly undrawn, the Borrower
shall immediately Cash Collateralize each such Letter of Credit (in an
(NY) 18007/156/CA/ca.07.doc
amount equal to the reimbursement obligations which would arise if such
Letter of Credit had been fully drawn on such date).
(c)Payments; Reimbursement Obligations.
(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
notify 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
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 9:00 AM. on
any date, on the next succeeding Domestic Business Day); and provided
further that if and to the extent any such reimbursement 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 from 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., and unless 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
Administrative Agent so to act on its behalf), give notice no later than 9:00
AM. 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'pro
rata share of the Reimbursement Obligation with respect to which such
notice relates. Each Bank shall make such Loan available to the
Administrative Agent at its address referred to in Section 9.01 in
immediately available funds, not later than 11 :00 AM., on the date
specified in such notice. The Administrative Agent shall pay the proceeds
of such Loans to the Issuing Bank, which shall immediately apply such
proceeds to repay the Reimbursement Obligation.
(NY) 18007/156/CA/ca,07.doc
(iii) To the extent a Reimbursement Obligation is not funded by
a Bank pursuant to clause (ii) above, such Bank will pay to the
Administrative 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
Bank'pro rata share of such Reimbursement Obligation, together with
interest on such amount for each day from the date of the Issuing Bank'
demand for such payment (or, if such demand is made after 9:00 AM. 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 demand and 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; provided 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 distributed 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:
(i) 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 may be 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;
(NY) 18007/156/CA/ca.07.doc
(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 untrue 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 ofthe Commitments 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; or
(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 ofthe Borrower or any
Bank under Section 2.17(e)(ii).
(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 indemnify 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 (f)
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 jurisdiction 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
(NY) 18007/156/CNca,07,doc
presentation to it of documents strictly complying with the terms and
conditions of the Letter of Credit; provided further that each Bank shall
have a claim for direct (but not consequential) damage suffered by it, to
the extent 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 further investigation, regardless of
any notice or information to the contrary, or refuse to accept and make
payment upon such documents if such documents are not in strict
compliance with the terms of such Letter of Credit.
(iii) 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 Commitments.
(f) 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 Administrative
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; provided that the Administrative 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.
Section 2.18. Increased Commitments; Additional Banks.
(NY) 18007/156/CA/ca.07.doc
(a) From time to time the Borrower may, upon at least five days' notice
to the Administrative Agent (which shall promptly provide a copy of such notice
to the Banks), increase the aggregate amount ofthe Commitments by an amount
not less than $10 000 000 (the amount of any such increase, the Increased
Commitments
(b) To effect such an increase, the Borrower may designate one or more
ofthe existing Banks or other financial institutions acceptable to the
Administrative Agent and each Issuing Bank which at the time agree to (i) in the
case of any such Person that is an existing Bank, increase its Commitment and (ii)
in the case of any other such Person (an Additional Bank"
),
become a party to
this Agreement with a Commitment of not less than $10 000 000.
(c) Any increase in the Commitments pursuant to this Section 2.18 shall
be subject to satisfaction of the following conditions:
(i) before and after giving effect to such increase, all
representations and warranties contained in Article 4 shall be true;
(ii) at the time of such increase, no Default shall have occurred
and be continuing or would result from such increase; and
(iii) after giving effect to such increase, the aggregate amount of
all increases in Commitments made pursuant to this Section 2.18 shall not
exceed $200 000 000.
(d) An increase in the aggregate amount of the Commitments pursuant
to this Section 2.18 shall become effective upon the receipt by the Administrative
Agent of (i) an agreement in form and substance satisfactory to the Administrative
Agent signed by the Borrower, by each Additional Bank and by each other Bank
whose Commitment is to be increased, setting forth the new Commitments of
such Banks and setting forth the agreement of each Additional Bank to become a
party to this Agreement and to be bound by all the terms and provisions hereof
(ii) such evidence of appropriate corporate authorization on the part of the
Borrower with respect to the Increased Commitments and such opinions of
counsel for the Borrower with respect to the Increased Commitments as the
Administrative Agent may reasonably request and (iii) a certificate ofthe
Borrower stating that the conditions set forth in subsection (c) above have been
satisfied.
( e) Upon any increase in the aggregate amount of the Commitments
pursuant to this Section 2., (i) the respective Letter of Credit Liabilities of the
Banks shall be redetermined as ofthe effective date of such increase and (ii)
within five Domestic Business Days, in the case of any Group of Base Rate Loans
then outstanding, and at the end of the then current Interest Period with respect
thereto, in the case of any Group of Euro Dollar Loans then outstanding, the
Borrower shall prepay such Group in its entirety and, to the extent the Borrower
elects to do so and subject to the conditions specified in Article 3 , the Borrower
(NY) 18007/156/CA/ca.07.doc
shall reborrow Committed Loans from the Banks in proportion to their respective
Commitments after giving effect to such increase, until such time as all
outstanding Committed Loans are held by the Banks in such proportion.
ARTICLE 3
CONDITIONS
Section 3.01. Effectiveness. The Commitments 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 Administrative Agent of counterparts of this
Agreement signed by each of the parties listed on the signature pages hereof (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);
(b) receipt by the Administrative Agent of an opinion of PacifiCorp
Office of General Counsel, internal counsel for the Borrower, dated the Effective
Date, substantially in the form of Exhibit E-l hereto and covering such additional
matters relating to the transactions contemplated hereby as the Required Banks
may reasonably request;
( c) receipt by the Administrative Agent of an opinion of Stoel Rives
LLP, counsel for the Borrower, dated the Effective Date, substantially in the form
of Exhibit E-2 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 an opinion of Davis Polk &
Wardwell, special counsel for the Administrative 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;
( e) 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 Utah, the Idaho Public Utilities Commission, the Public
Utility Commission of Oregon, the Public Service Commission of Wyoming and
the California Public Utilities Commission;
(f) receipt by the Administrative Agent of all documents it may
reasonably request relating to the existence ofthe Borrower, the corporate
authority for and the validity of this Agreement and the Notes , and any other
(NY) 18007/156/CNca,07,doc
matters relevant hereto, all in form and substance satisfactory to the
Administrative Agent; and
(g)
receipt by the Administrative Agent for the benefit of the Banks of
the up-front participation fees previously agreed to by the Borrower;
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 October 24 2007. The
Administrative Agent shall promptly notify the Borrower, the Banks 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:
(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 2.17 (c), as the case may be;
(b) the fact that, immediately after such Borrowing 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 Borrowing 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 (other than the representations and warranties
contained in Section 4.04(b) and Section 4.05) 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, 2011 , or in the
case of any issuance of any Letter of Credit with an expiry date subsequent to
April 30, 2011 , receipt by the Administrative Agent of evidence satisfactory to it
that the Borrower has obtained a renewal of its authority from the Idaho 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.
(NY) 18007/156/CA/ca.07.doc
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants 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 governmental licenses, authorizations
consents and approvals required to carryon its business as now conducted.
Section 4.02. Corporate and Governmental 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 authorized by all necessary corporate action, require no action by or in
respect of, or filing with, any governmental 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 full 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 instrument binding upon the
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 Agreement constitutes a valid and
binding agreement of the Borrower and the Notes, if and when executed and
delivered in accordance with this Agreement, 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 audited consolidated
balance sheet of the Borrower and its Consolidated Subsidiaries as of December
, 2006 and the related audited statements of consolidated income and retained
earnings and of consolidated cash flows for the nine month period then ended
reported on by Deloitte & Touche LLP and set forth in the Borrower s 2006 Form
10-, a copy of which has been delivered to each ofthe 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 period.
(b) There has since December 31 , 2006, been no change in the business
financial position, results of operations or prospects of the Borrower which would
materially adversely affect the ability of the Borrower to meet its commitments
hereunder.
(NY) 18007/156/CNca,07.doc
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 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 hereunder (except as disclosed in the Borrower s 2006 Form 10-
or the Borrower s reports on Form 10-Q for the three month periods ended March
, 2007 and June 30, 2007, respectively, as filed with the Securities and
Exchange Commission) or (ii) which in any manner draws into question the
validity or enforceability ofthis 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. Compliance with ERISA. Each member of the ERISA
Group has fulfilled its obligations under the minimum funding standards of
ERISA and the Internal Revenue Code with respect to each Plan and is in
compliance in all material respects with the presently applicable provisions of
ERISA and the Internal Revenue Code with respect to each Plan. No member
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) incurred 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 tax returns and all other material tax returns which are required to be filed
by it and has paid all taxes 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 taxes or other governmental charges are, in
the reasonable opinion of the Borrower, adequate.
Section 4.09. Not an Investment Company. The Borrower is not an
investment company within the meaning of the Investment Company Act of
1940, as amended.
Section 4.10. Insurance. The properties and operations of the Borrower
of a character usually insured by Persons of established reputation engaged in the
same or a similar business, similarly situated, are adequately insured both as to
type of insurance and amount by financially sound and reputable insurers, and the
Borrower carries with such insurers adequate other insurance, including, without
(NY) 18007l156/CA/ca.07.doc
limitation, public liability and product liability insurance, as is usually carried by
Persons of established reputation engaged in the same or a similar business
similarly situated.
ARTICLE 5
COVENANTS
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 Borrower 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 earnings 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 Deloitte & Touche LLP or other independent public
accountants of nationally recognized standing;
(b) 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 Borrower s previous
fiscal year, all certified (subject to normal year-end adjustments) as to fairness of
presentation, generally accepted accounting principles and consistency by an
Authorized Officer;
( c) simultaneously with the delivery of each set of financial statements
referred to in clauses (a) and (b) above, a certificate of an Authorized Officer (i)
setting forth in detail satisfactory to the Administrative Agent the caIculations
required to establish whether the Borrower was in compliance with the
requirements of Sections 5.05 and 5.06(j) 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 forth the details thereof and the action which the
Borrower is taking or proposes to take with respect thereto;
(NY) 18007l156/CA/ca,07.doc
(d) simultaneously with the delivery of each set of financial statements
referred to in clause (a) above, a statement of the firm of independent public
accountants which reported on such statements whether anything has come to
their attention to cause them to believe that any Default existed on the date of
such statements;
( e) forthwith upon the occurrence 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;
(f) promptly upon the mailing thereof to the shareholders of the
Borrower generally, copies of all financial statements, reports and proxy
statements so mailed;
(g)
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 10-, 10-Q and 8-K (or their equivalents) which
the Borrower shall have filed with the Securities and Exchange Commission;
(h) if and when any member of the ERISA Group (i) gives or is required
to give notice to the PBGC of any reportable event" (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
administrator 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 given or required to
be given to the PBGC; (ii) receives notice of complete or partial withdrawal
liability under Title IV of ERISA in excess of $1 0 000 000 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 $1 0 000 000, 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 trustee to
administer any Plan, a copy of such notice; (iv) applies for a waiver ofthe
minimum funding standard under Section 412 of the Internal Revenue Code, a
copy of such application; (v) gives notice of intent to terminate any Plan under
Section 4041 ( 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 Authorized Officer setting forth
details as to such occurrence and action, if any, which the Borrower or applicable
member of the ERISA Group is required or proposes to take; and
(NY) 18007/156/CNca,07.doc
(i) from time to time such additional information regarding the
financial position or business of the Borrower as the Administrative 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 furnish to the Banks such information as to the insurance carried as
may be reasonably requested in writing by the Administrative Agent.
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
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 commitments hereunder.
Section 5.05. Total Debt. Total Debt will at no time exceed 65% of Total
Capitalization provided that for the purposes of the calculation of this ratio, any
non-cash effects resulting from adoption and ongoing application of "Statement of
Financial Accounting Standards No. 158: Employers' Accounting for Defined
Benefit Pension and other Postretirement Plans, an amendment of F ASB
Statements No. 87, 88 106, and 132(R)" will be excluded.
Section 5.06. 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;
(b) any Lien that qualifies as an "Excepted Encumbrance under
Section 1.06 of the Umbrella Mortgage provided that foreclosure of any Liens for
taxes, assessments or other governmental charges so qualifying shall have been
effectively stayed;
(c) any Lien on the Borrower 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 Internal Revenue Code as in effect when such Debt is incurred or
assumed;
(NY) 18007/156/CNca,07,doc
(d) any Lien on the Borrower s interest in Pollution Bonds or cash or
cash equivalents securing (i) the obligation ofthe 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;
(f) 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
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 secure any single obligation (or series of related obligations) in an amount
exceeding $100 000 000 and (iii) do not in the aggregate materially detract from
the value of its assets or materially impair the use thereof in the operation of its
business;
G) 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 G) 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 G)
above on cash 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 (j) above securing obligations under
Hedging Agreements shall not at any time exceed 7.5% of Tangible Net Worth;
(1) 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 thereofto any resulting
balance due;
(NY) 18007/156/CA/ca,07.doc
(m) Liens on cash and letters of credit securing obligations under
Commodity Forward Contracts; and
(n) the right of the counterparty to two or more Commodity Forward
Contracts to close out such Commodity Forward Contracts if applicable margin or
other requirements are not met and apply any proceeds thereofto any resulting
balance due.
Section 5.07. 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 giving effect thereto, no
Default shall have occurred or be continuing, or
(ii) sell, lease or otherwise transfer, directly or indirectly, all or
substantially all of the assets of the Borrower to any other Person.
Section 5.08. Use of Proceeds. The proceeds of the Loans made and the
Letters of Credit issued under this Agreement will be used by the Borrower for its
general corporate purposes. None of such proceeds will be used, directly or
indirectly, for the purpose, whether immediate, incidental or ultimate, of buying
or carrying any "margin stock" within the meaning of Regulation U.
Section 5.09. 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
DEFAULTS
Section 6.01. Events of Default. If one or more ofthe following events
Events of Default"shall have occurred 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 ofthe due
date thereof, any interest, commitment fees or facility fees payable hereunder or
shall fail to Cash Collateralize any Letter of Credit pursuant to Section
17(b )(iv);
(NY) 18007l156/CNca,07,doc
(b) 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., 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, warranty, 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 incorrect
in any material respect when made (or deemed made);
(f) the Borrower shall fail to make any payment in respect of any
Material Debt (other than the Loans or any Reimbursement 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
maturity thereof;
(h) the Borrower shall commence 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 commenced 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 appointment 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 bankruptcy laws as now or hereafter in effect;
(NY) 18007/156/CNca.07,doc
(j)
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 IV 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 administrator 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 4219(c)(5) 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
of which 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 4219(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;
(k) a judgment or order for the payment of money in excess of
$25 000 000 shall be rendered against the Borrower and such judgment or order
shall continue unsatisfied and unstayed for a period of 30 days; or
(I) MidAmerican shall fail to own (directly or indirectly through one or
more Subsidiaries) at least 80% of the outstanding shares of common stock ofthe
Borrower; any person or group of persons (within the meaning of Section 13 or 14
of the Securities Exchange Act of 1934, as amended), except Berkshire Hathaway
Inc. or any wholly-owned subsidiary thereof, shall acquire 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 MidAmerican; or, during any period of 14 consecutive calendar
months commencing on or after March 21 , 2006, 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
applicable 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 Administrative 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
(NY) 18007l156/CA/ca.07.doc
, and the same shall thereupon become, immediately due and payable without
presentment, demand, protest or other notice of any kind, all of which are hereby
waived by the Borrower; provided that in the case of any of the Events of Default
specified in clause (h) 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 presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower.
Section 6.02. Notice of Default. The Administrative 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 notify all the Banks thereof.
Section 6.03. Cash Cover. The Borrower agrees , in addition to the
provisions in Section 6., that upon the occurrence 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 Administrative Agent an amount in immediately
available funds (which funds shall be held as collateral pursuant to arrangements
satisfactory to the Administrative Agent) equal to the aggregate amount available
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 (h) or (i)
above with respect to the Borrower, 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
THE ADMINISTRATIVE AGENT
Section 7.01. Appointment and Authorization. Each Bank irrevocably
appoints and authorizes the Administrative Agent to take such action as agent on
its behalf and to exercise such powers under this Agreement and the Notes as are
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 Affiliates. UBOC 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 UBOC. 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 Administrative Agent. The obligations of the
Administrative Agent hereunder are only those expressly set forth herein.
(NY) 18007/156/CAlca,07,doc
Without limiting the generality of the foregoing, the Administrative 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 Administrative 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. Liability 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 observance of
any of the covenants or agreements of the Borrower; (iii) the satisfaction of any
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 Administrative 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 transmission 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 in accordance
with its Commitment, indemnify the Administrative 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 misconduct) 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 indemnitees hereunder or
thereunder.
Section 7.07. Credit Decision. Each Bank acknowledges that it has
independently and without reliance upon the Administrative 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
(NY) 18007/156/CNca,07,doc
make its own credit decisions in taking or not taking any action under this
Agreement.
Section 7.08. Successor Administrative Agent. The Administrative 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 Administrative Agent shall
have been so appointed by the Required Banks, and shall have accepted such
appointment, within 10 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 organized or licensed under the laws of the United States of
America or of any State thereof and having a combined capital and surplus of at
least $500 000 000. Upon the acceptance of its appointment as Administrative
Agent hereunder by a successor Administrative Agent, such successor
Administrative Agent shall thereupon succeed to and become vested with all the
rights and duties of the retiring Administrative Agent, and the retiring
Administrative 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
benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent.
Section 7.09. Administrative Agent Fee. The 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 Administrative Agent.
Section 7.10. Syndication Agent. The Syndication Agent, in such
capacity, shall have no duty or liability whatsoever under this Agreement.
ARTICLE 8
CHANGE IN CIRCUMSTANCES
Section 8.01. Basis for Determining Interest Rate Inadequate or Unfair.
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
Interest Period, or
(b) in the case of Euro-Dollar Loans, the Required Banks advise the
Administrative Agent that the London Interbank Offered Rate as determined by
the Administrative Agent will not adequately and fairly reflect the cost to such
Banks of funding their Euro-Dollar Loans for such Interest Period
(NY) 18007/156/CA/ca,07.doc
the Administrative Agent shall forthwith give notice thereofto the Borrower and
the Banks, whereupon until the Administrative Agent notifies the Borrower that
the circumstances giving rise to such suspension no longer exist, (i) the
obligations of the Banks to make Euro-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 ofthe 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 Borrowing is a
Competitive Bid LIBOR Borrowing, the Competitive Bid LIB OR 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 administration thereofby any governmental
authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Bank (or its Euro-Dollar Lending
Office) with any request or directive (whether or not having the force oflaw)
any such authority, central 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 notify the Administrative
Agent, the Administrative 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 otherwise
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
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 Loans of the other Banks.
(NY) 18007/156/CNca.07.doc
Section 8.03. Increased Cost and Reduced Return. (a) If on or after (x)
the date of this Agreement, 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 administration 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 oflaw) of any such authority, central bank or
comparable agency, shall impose, modify or deem applicable any reserve
(including, without limitation, any such requirement imposed by the Board of
Governors 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 of, 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
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 maintaining 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.
(b) If any Bank or any Issuing Bank shall have determined 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 governmental authority, central
bank or comparable agency charged with the interpretation or administration
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, central bank or comparable
agency that, for purposes of capital adequacy requirements, the Commitments
hereunder do not constitute commitments with an original maturity of less than
one year), has or would have the effect of reducing the rate of return 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
(NY) 18007/156/CNca.07.doc
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 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 (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 days 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 entitling 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.
(c) Each Bank and each Issuing Bank will promptly notify the Borrower
and the Administrative 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 of, such compensation and will not, in the judgment of such Bank or
such Issuing Bank, be otherwise disadvantageous to such Bank or such Issuing
Bank. A certificate of any Bank or any Issuing Bank claiming compensation
under this Section and setting 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., the following
terms have the following meanings:
Taxes" means any and all present or future 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 taxes
imposed on it, by a jurisdiction under the laws of which such Bank, such Issuing
Bank or the Administrative 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 tax 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
(NY) 18007/156/CA/ca.07.doc
the execution or delivery of, 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 Administrative Agent hereunder or under any Note
shall be made without deduction for any Taxes or Other Taxes; provided that, if
the Borrower shall be required by law to deduct any Taxes or Other Taxes 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 may be) 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 taxation authority or other authority in accordance with applicable
law and (iv) the Borrower shall furnish to the Administrative Agent, at its address
referred to in Section 9., the original or a certified copy of a receipt evidencing
payment thereof.
( c) The Borrower agrees to indemnify each Bank, each Issuing Bank
and the Administrative Agent for the full 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 8.04) paid by such Bank
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 Administrative 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 tax treaty to which the United States
is a party which exempts the Bank from United States withholding tax or reduces
the rate of withholding tax on payments of interest for the account of such Bank
or certifying that the income receivable pursuant to this Agreement is effectively
connected with the conduct of a trade 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 8.04(b) or 8.04(c) with respect to
Taxes imposed by the United States; provided that if a Bank, which is otherwise
(NY) 18007/156/CA/ca.07,doc
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.
(f) If the Borrower is required to pay additional amounts to or for the
account of any Bank pursuant to this Section 8., 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 Substituted for 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
principal shall be payable contemporaneously with the related Fixed Rate Loans
ofthe 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. Substitution 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., (ii) any Bank has demanded
compensation under Section 8.03 or 8.04 or (iii) any Bank has declined a request
to extend the Termination Date pursuant to Section 2.01(c), 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 ofthe 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'
outstanding Loans plus (B) any accrued but unpaid interest thereon plus (C) the
accrued but unpaid fees in respect of that Bank's Commitment hereunder plus (D)
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.
(NY) 18007/156/CNca,07.doc
ARTICLE 9
MISCELLANEOUS
Section 9.01. Notices. All notices, requests and other communications to
any party hereunder shall be in writing (including bank wire, telex , facsimile
transmission or similar writing) and shall be given to such party: (v) in the case
ofthe Borrower, at its address or facsimile number set forth on the signature
pages hereof, (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 hereof, (y) in the case of any Bank, at its address, facsimile
number or telex number set forth in its Administrative Questionnaire or (z) in the
case of any party, such other address, facsimile number or telex number as such
party may hereafter specify for the purpose by notice to the Administrative Agent
and the Borrower. Each such notice, request or other communication shall be
effective (i) if given by telex, when such telex is transmitted to the telex number
specified in this Section and the appropriate answerback is received, (ii) if given
by facsimile transmission, when transmitted 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
Administrative Agent or any Issuing Bank under Article 2 or Article 8 shall not be
effective until received.
Section 9.02. No Waivers. 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 Administrative the Agent, including fees
and disbursements of special counsel for the Administrative 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 occurs, 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 indemnify the Administrative Agent, each
Bank and each Issuing Bank, their respective affiliates and the respective
directors, officers, agents and employees of the foregoing (each an Indemnitee
(NY) 18007/156/CNca.07.doc
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, administrative
or judicial proceeding (whether or not such Indemnitee shall be designated a party
thereto) in any way relating to or arising out of this Agreement or any Loans or
any Letter of Credit hereunder; provided that no Indemnitee 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
Administrative Agent to declare the Loans and the Reimbursement Obligations to
be immediately due and payable pursuant 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
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 Administrative Agent
or such Bank or Issuing Bank, as the case may be, now or hereafter existing under
this Agreement, regardless of whether any such deposit 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 off and regardless of
whether the Administrative Agent or such Bank or Issuing Bank, as the case may
, shall have made any demand for payment under this Agreement. The
Administrative Agent and each Bank agree promptly to notify the Borrower after
any such set-off and application is made by such party; provided that any failure
to give such notice shall not affect the validity of such setoff and application. The
rights of the Administrative 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-off or
counterclaim or otherwise, receive payment of a proportion of the aggregate
amount of principal and interest due with respect to the Loans and Letter of Credit
Liabilities held by it which is greater than the proportion received by any other
Bank in respect ofthe 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 adjustments (including,
without limitation, any adjustments required by reason of a setoff subsequently
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 Banks pro rata; provided that nothing in this Section shall impair
(NY) 18007/156/CA/ca,07,doc
the right of any Bank to exercise any right of set-off or counterclaim it may have
and to apply the amount subject to such exercise to the payment of indebtedness
of the Borrower 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 Waivers. 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, ifthe 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
Commitments 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
09(b )(ii) or Section 2.17(b )(ii) which may be 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 Reimbursement
Obligation, any fees hereunder or for any reduction or termination of any
Commitment or (except as expressly provided in Section 2.17) the expiry date of
any Letter of Credit, or (B) unless signed by all the Banks, (i) change the
percentage of the Commitments or ofthe 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 any Bank to pro rata sharing 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 transfer 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 Commitment
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
Agent, such Bank shall remain responsible for the performance of its obligations
hereunder, and the Borrower and the Administrative 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
(NY) 18007/156/CA/ca,07,doc
the sole right and responsibility to enforce the obligations ofthe 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 may provide that such Bank will not agree to any
modification, amendment or waiver of this Agreement described in clause (i), (ii)
or (iii) of Section 9.05(A) 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 ofthe 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 given 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 Commitment of not less than $5 000 000), of its rights and obligations
under this Agreement and the Notes, and such Assignee shall assume such rights
and obligations, pursuant to an Assignment and Assumption Agreement in
substantially the form of Exhibit G hereto executed by such Assignee and such
transferor Bank, with (and subject to) the subscribed consent ofthe Borrower
(which shall not be unreasonably withheld or delayed), the Administrative Agent
and the Issuing Bank; provided that, (i) if an Assignee is an affiliate of the
transferor Bank, an Approved Fund or was a Bank immediately before such
assignment, or if an Event of Default exists, no such consent of the Borrower shall
be required, and (ii) ifsuch an Assignee is an affiliate ofthe transferor Bank, no
such consent of the Administrative Agent or the Issuing Bank shall be required
and provided further that such assignment may, but need not, include rights of the
transferor Bank in respect of outstanding Competitive Bid Loans. Upon
execution and delivery of such an instrument and payment by such Assignee to
such transferor 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
Commitment as set forth in such instrument 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
arrangements 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 affiliate 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
(NY) 18007/156/CNca,07.doc
to exemption from deduction or withholding of any United States federal income
taxes in accordance with Section 8.04(d).
(d) Any Bank may at any time assign all or any portion of its rights
under this Agreement and its Note to a Federal Reserve Bank. No such
assignment shall release the transferor 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
transferred, unless such transfer is made with the Borrower s prior written consent
or by reason of the provisions of Section 8., 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 giving rise to such greater payment did not exist.
(f) The Administrative Agent, acting solely for this purpose as an agent
of the Borrower, shall maintain at one of its offices in the State of California a
copy of each Assignment and Assumption Agreement delivered to it and a
register for the recordation of the names and addresses of the Banks, and the
Commitments 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 entries in the Register shall be conclusive, and the
Borrower, the Administrative 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 contrary. 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 contrary contained herein, any
Bank (a Granting Bank") may grant to a special 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 Agreement; provided that (i) nothing
herein shall constitute a commitment 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 ofthe 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, arrangement, insolvency or liquidation
proceedings or any other proceeding under any bankruptcy or similar law.
(NY) 18007/156/CNca.07.doc
Notwithstanding anything to the contrary contained in this Section 9.06(g), any
SPC may (i) with notice to, but without the prior written consent of, the Borrower
and the Administrative Agent and without paying 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 Administrative 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 Loans 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 Administrative Agent, Issuing
Bank and the Banks agrees 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 practices and (y) agents of, or persons retained by, the
Administrative Agent, any Issuing Bank or any Bank who are or are expected to
become engaged in evaluating, approving, structuring or administering the Loans
and who, in the case of (x) and (y), receive such information having been made
aware of the restrictions set forth in this Section; provided that nothing herein
shall prevent the Administrative 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 transactions 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
Administrative Agent, any Issuing Bank or any Bank, or their respective affiliates
(iv) which has been publicly disclosed, (v) to the extent reasonably required in
connection with any litigation to which the Administrative Agent, any Issuing
Bank, any Bank or their respective affiliates may be a party, (vi) to the
Administrative Agent', 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 ofthis Section 9., (viii) in
connection with the exercise of any remedy hereunder or (ix) with the prior
written consent of the Borrower. The Administrative Agent, each Issuing Bank
and each Bank shall attempt in good faith, to the extent permitted by applicable
law, (i) to notify 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
(NY) 18007/156/CNca,07.doc
Agreement (and each of its employees, representatives or other agents) may
disclose to any and all persons, without limitation of any kind, the tax treatment
and tax structure of the credit facility provided pursuant to this Agreement and all
materials of any kind, including opinions or other tax analyses, that have been
provided to it by any other party relating to such tax treatment and tax 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.
Section 9.09. GOVERNING LA W; SUBMISSION TO JURISDICTION
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 LAYING OF THE
VENUE OF ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT
AND ANY 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 understandings, oral or
written, relating to the subject matter hereof.
Section 9.11. USA PATRIOT Act Notice. Each Bank that is subject to the
Act (as hereinafter defined) and the Administrative Agent (for itself and not on
behalf of any Bank) hereby notifies all Borrowers that pursuant to the
requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into
law October 26 2001)) (the "Act"), it is required to obtain, verify and record
information that identifies each Borrower, which information includes the name
and address of such Borrower and other information that will allow such Bank or
the Administrative Agent, as applicable, to identify the Borrower in accordance
with the Act.
(NY) 18007/156/CNca.07.doc
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.
P ACIFICORP
By:Isl Bruce N. Williams
Name: Bruce N. WilliamsTitle: Vice President and
Treasurer
Address: 825 N.E. Multnomah St.
Portland, Oregon 97232
Telecopy number: [phone]
(NY) 18007/156/CNca,07,doc
THE ROYAL BANK OF SCOTLAND
PLC
as Bank and as Syndication Agent
By: Isl Emily Freedman
Name: Emily Freedman
Title: Vice President
(NY) 18007l156/CNca,07.doc
UNION BANK OF CALIFORNIA, N.
as Bank and as Administrative Agent
By:Isl Dennis G. Blank
Name: Dennis G. Blank
Title: Vice President
Address:445 So. Figueroa St.
Los Angeles, CA 90071
Facsimile
number: 213 236-4096
(NY) 18007/1 56/CA/ca.07,doc
BANK OF AMERICA, N.
By: Isl Richard Stein
Name: Richard SteinTitle: Senior Vice President
(NY) 18007l156/CNca,07,doc
BARCLA YS BANK PLC
By: Isl Nicholas A Bell
Name: Nicholas A BellTitle: Director
(NY) 18007ll56/CA/ca.07.doc
CITIBANK, N.
By: Isl Oscar Cragwell
Name: Oscar CragwellTitle: Vice President
(NY) 18007/156/CA/ca.07,doc
JPMORGAN CHASE BANK, N.
By: Isl Michael J. DeForge
Name: Michael J. DeForgeTitle: Executive Director
(NY) 18007/156/CA/ca,07,doc
LEHMAN COMMERCIAL PAPER INe.
By: Isl Adrian De Lagarge
Name: Adrian De LagargeTitle: Authorized Signatory
(NY) 18007l156/CA/ca,07,doc
SUNTRUST BANK
By: Isl Yann Pirio
Name: Yann PirioTitle: Vice President
(NY) 18007/156/CNca,07,doc
THE BANK OF TOKYO-MITSUBISHI
UFJ LTD., NEW YORK BRANCH
By: Isl Alan Reiter
Name: A ReiterTitle: Authorized Signatory
(NY) 18007/156/CA/ca.07.doc
WELLS FARGO BANK, NATIONAL
ASSOCIATION
By: Isl Lisa M. Larpenteur
Name: Lisa M. LarpenteurTitle: Vice President
(NY) 18007/156/CNca.07.doc
WILLIAM STREET COMMITMENT
CORPORATION
By: Isl Mark Walton
Name: Mark WaltonTitle: Assistant Vice President
(NY) 18007/156/CA/ca.07.doc
CO MMITMENT SCHEDULE
Name of Bank
The Royal Bank of Scotland PLC
Union Bank of California, N.A /
Bank of America, N.
Barclays Bank PLC
Citibank, N.
JPMorgan Chase Bank, N.
Lehman Commercial Paper Inc.
SunTrust Bank
The Bank of Tokyo-Mitsubishi UFJ
Branch
Wells Fargo Bank, National Association
William Street Commitment Corporation
(NY) 18007/156/CA/ca,07,doc
Ltd.New York
Total
Commitment Amount
000 000
000 000
000 000
000 000
000 000
000 000
000 000
000 000
000 000
000 000
000 000
700.000.000
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:
Pricing Level I Level II Level III LeveJ IV Level V Level VI Level VII
Euro-Dollar Margin:
Usage oC 50%
Usage 2: 50%10%115%155%195%30%.40%60%
20%215%255%295%.40%50%70%
Facility Fee Rate 05%06%07%08%10%125%175%
For purposes of this Schedule, the following terms have the following
meanings (subject to the final paragraph of this Pricing Schedule):
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 or A 1 or higher by
Moody
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 by
S&P or A2 by Moody
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 A- by
S&P or A3 by Moody
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+
by S&P or Baal by Moody
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
by S&P or Baa2 by Moody
Level VI 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-
by S&P or Baa3 by Moody
Level VII Pricing" applies on any day if no lower Pricing Level applies
on such day.
Moody " means Moody s Investors Service, Inc., a Delaware
corporation, and its successors, or, if such corporation and its successors shall no
longer perform the functions of a securities rating agency, "Moody " shall be
(NY) 18007/156/CNca,07,doc
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.
Pricing Level" refers to the determination of which of Level I Pricing,
Level II Pricing, Level III Pricing, Level IV Pricing, Level V Pricing, Level VI
Pricing or Level VII Pricing applies on any day. Level I Pricing is the lowest
Pricing Level and Level VII Pricing the highest.
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.
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 be deemed to be 100%.
For purposes ofthis Pricing Schedule, the credit ratings in effect on any
day are those in effect at the close of business on such day. If the ratings are split
the applicable pricing will be based upon the higher rating assigned by S&P or
Moody s; provided that if the rating differential is more than one notch, the
applicable pricing will be determined assuming that (a) the higher rating is equal
to the midpoint of the two ratings (e., for a split rating of A+/A3, A is the
midpoint and will be deemed to be the higher rating, and for a split rating of
BBB/Al , A3 is the midpoint and will be deemed to be the higher rating) or (b) if
there is no exact midpoint, the higher rating is equal to the higher of the two
middle intermediate ratings (e., for a split rating of A+/Baal , A is the higher of
the two middle intermediate ratings and will be deemed to be the higher rating,
and for a split rating ofBB+/A2, Baal is the higher of the two middle
intermediate ratings and will be deemed to be the higher rating).
(NY) 18007/156/CNca,07.doc
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 Union Bank of California, N., 445 So. Figueroa
St., Los Angeles, CA 90071.
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 ofthe Notes referred to in the Credit Agreement dated as
of October 23 , 2007 among the Borrower, the Banks party thereto, The Royal
Bank of Scotland pIc, as Syndication Agent, and Union Bank of California, N.
as Administrative Agent (as the same may be amended from time to time, the
Credit Agreement"
(NY) 18007/156/CA/ca.D7,doc
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.
ACIFICORP
By:
Name:
Title:
(NY) 18007/156/CA/ca.07.doc
Note (cont'
LOANS AND PAYMENTS OF PRINCIPAL
Amount of
Amount of Type of Principal Maturity Notation
Date Loan Loan Repaid Date Made By
(NY) 18007/156/CNca.07,doc
EXHIBIT B
Form of Competitive Bid Quote Request
(Date)
To:Union Bank of California, N.A (the "Administrative Agent"
From: PacifiCorp
Re:Credit Agreement (the "Credit Agreement") dated as of October 23
2007 among the Borrower, the Banks party thereto , The Royal Bank of
Scotland pIc, as Syndication Agent, and Union Bank of California, N.
as Administrative Agent
We hereby give notice pursuant to Section 2.03 ofthe Credit Agreement
that we request Competitive Bid Quotes 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 Interbank Offered Rate.
Terms used herein have the meanings assigned to them in the Credit
Agreement.
ACIFICORP
By:
Name:
Title:
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 I , 2, 3 or 6 months in the case of a Competitive Bid LIBOR
Loan, subject to the provisions of the definition ofInterest Period.
(NY) 18007l156/CA/ca.07.doc
EXHIBIT C
Form of Invitation for Competitive Bid Quotes
To:(Name of Bank)
Re:Invitation for Competitive Bid Quotes to PacifiCorp (the "Borrower
Pursuant to Section 2.03 of the Credit Agreement dated as of October 23
2007 among the Borrower, the Banks party thereto, The Royal Bank of Scotland
pic, 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 Interbank Offered Rate.
Please respond to this invitation by no later than (11 :00 AM.) (6:30 AM.
on (date).
UNION BANK OF CALIFORNIA, N.
Authorized Officer
(NY) 18007/156/CNca,07.doc
EXHIBIT D
Form of Competitive Bid Quote
UNION BANK OF CALIFORNIA, N.
as Administrative Agent
445 So. Figueroa St.
Los Angeles, CA 90071
Attention:
Re:Competitive Bid Quote to PacifiCorp (the "Borrower
In response to your invitation on behalf of the Borrower dated
, 20 , we hereby make the following Competitive Bid Quote on
the following terms:
Quoting Bank:
Person to contact at Quoting Bank:
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:
As specified in the related Invitation.
(NY) 18007/156/CNca.07.doc
Principal
Amount *
Interest
Period**
Competitive Bid
(Margin ***
****
(Absolute Rate
(Provided, that the aggregate principal amount of Competitive Bid Loans for
which the above offers may be accepted shall not exceed $ .
We understand and agree that the offer(s) set forth above, subject to the
satisfaction of the applicable conditions set forth in the Credit Agreement dated as
of October 23, 2007 among the Borrower, the Banks party thereto, The Royal
Bank of Scotland pIc, 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
(NAME OF BANK)
Dated:By:
Authorized Officer
Principal amount bid for each Interest Period may not exceed principal amount
requested. Specify aggregate 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
Competitive Bid LIB OR Loan or one or two weeks or , 2, 3 or 6 months in the case of
Competitive Bid LIBOR Loan, as specified in the related Invitation. No more than five bids are
pennitted for each Interest Period.
***
Margin over or under the London Interbank Offered Rate detennined for the
applicable Interest Period. Specify percentage (rounded to the nearest III 0 000 of 1 %) and
specify whether "PLUS" or MINUS"
****
Specify rate of interest per annum (rounded to the nearest IIIO OOOth of 1%).
(NY) 18007/156/CNca.07,doc
EXHIBIT E-
OPINION OF
INTERNAL COUNSEL FOR THE BORROWER
(TO BE ISSUED ON P ACIFICORP LETTERHEAD)
(Effective Date)
To the Banks and the Agents
Referred to Below
c/o Union Bank of California, N.
as Administrative Agent
445 So. Figueroa St.
Los Angeles, CA 90071
Dear Sirs:
The undersigned is Vice President, General Counsel and Corporate
Secretary ofPacifiCorp, an Oregon corporation (the Borrower
),
and in such
capacity references the Credit Agreement, dated as of October 23 2007 among
the Borrower, the Banks party thereto, The Royal Bank of Scotland pIc, as
Syndication Agent, and Union Bank of California, N., as Administrative Agent
(the Credit Agreement"
).
Terms defined in the Credit Agreement are used
herein as therein defined.
I have examined originals or copies, certified or otherwise identified to my
satisfaction, of such documents, corporate records, certificates of public officials
and other instruments and have conducted such other investigations of fact and
law as I have deemed necessary or advisable for purposes of this opinion. This
opinion is being tendered to you pursuant to Section 3.01(b) of the Credit
Agreement.
In rendering this opinion, I have assumed the genuineness of all
signatures, the authenticity of all documents provided to me as originals and the
conformity to authentic original documents of all documents provided to me as
certified, conformed or photostatic copies. As to questions of fact material to the
following opinion, when relevant facts were not independently established, I have
relied upon certificates of public officials.
Upon the basis of the foregoing, and subject to the qualifications below, I
am ofthe opinion that there is no action, suit or proceeding pending against, or to
the best of my knowledge threatened against, the Borrower before any court or
(NY) 18007/156/CA/ca.07,doc
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, or (ii) which in any manner draws into question the validity or
enforceability of the Credit Agreement or the Notes except as disclosed in the
Borrower s 2006 Form 10-, or the Borrower s reports on Form 10-Q for the
three month periods ended March 31 2007 and June 30, 2007, respectively, as
filed with the Securities and Exchange Commission. Further, to the best of my
knowledge, the execution and performance by the Borrower of the Credit
Agreement and the Notes do not contravene, or constitute a default under, any
material agreement, judgment, injunction, order, decree or other instrument
binding upon the Borrower which could have a materially adverse effect on the
ability ofthe Borrower to meet its commitments under the Credit Agreement, or
result in the creation or imposition of any Lien on any asset of the Borrower.
The opinions herein expressed are limited to matters governed by the laws
of the United States of America and the State of Utah in each case as they exist at
the date hereof, and I express no opinion as to the law of any other jurisdiction.
In giving the foregoing opinion, I express no opinion as to the effect (if
any) of any law of any jurisdiction 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 my prior
written consent.
Very truly yours
PacifiCorp
By:
Name: Mark C. Moench
Title: Vice President, General
Counsel and Corporate
Secretary
(NY) 18007/156/CNca.07.doc
EXHIBIT E-
OPINION OF
COUNSEL FOR THE BORROWER
(Effective Date J
To the Banks and the Agents
Referred to Below
c/o Union Bank of California, N.
as Administrative Agent
445 So. Figueroa St.
Los Angeles, CA 90071
Dear Sirs:
We have acted as counsel for PacifiCorp (the "Borrower ) in connection
with the Credit Agreement, dated as of October 23 2007 among the Borrower, the
Banks party thereto, The Royal Bank of Scotland pic, as Syndication Agent, and
Union Bank of California, N., 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 ( c) of the Credit Agreement.
In 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 ofthe 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
authority to own its properties and to carryon the business in which it is engaged
as described in the Borrower s 2006 Form 1O-
(NY) 18007l156/CA/ca.07.doc
2. The execution and performance by the Borrower ofthe Credit
Agreement and the Notes are within the Borrower s corporate powers, have been
duly authorized by 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.
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' authorization requirements
(or, in the case of Washington, confirming compliance with RCW ~80.08.040)
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 state governmental body legally required for the
authorization ofthe 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. The Borrower is not an "investment company" within the
meaning of the Investment Company Act of 1940, as amended.6. Because of order of the Public Utility Commission of Oregon
which, to the best of our knowledge, remains in full force and effect on the date
hereof, authorizing the execution, delivery and performance by the Borrower
under the Credit Agreement, no approval, consent or authorization is needed from
the Federal Energy Regulatory Commission under Section 204 of the Federal
Power Act.
The opinions herein expressed are limited to matters governed 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 ofthe 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
(NY) 18007/156/CNca.07.doc
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
senior secured debt, and the Borrower may not borrow after April 30, 2011 , or
permit the expiration date of a Letter of Credit to be later than April 30, 2011
without obtaining a renewal of its authority from the Idaho Public Utilities
Commission. In rendering the opinion set forth in paragraph 4, we have assumed
that the laws ofthe 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 any jurisdiction 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
(NY) 18007/156/CA/ca,07.doc
EXHIBIT F
OPINION OF
DAVIS POLK & WARDWELL, SPECIAL COUNSEL
FOR THE ADMINISTRATIVE AGENT
October 23 2007
To the Banks and the Agents
Referred to Below
c/o Union Bank of California, N.
as Administrative Agent
445 So. Figueroa St.
Los Angeles, CA 90071
Dear Sirs:
We have participated in the preparation ofthe Credit Agreement (the
Credit Agreement") dated as of October 23, 2007 among PacifiCorp, an
Oregon corporation (the "Borrower ), the banks party thereto (the "Banks ), The
Royal Bank of Scotland pic, as Syndication Agent, and Union Bank of California
, 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(d) 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.
(NY) 18007/156/CNca.07,doc
We are members of the Bar of the State of New York and the foregoing
opinion is limited to the laws ofthe 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
(NY) 18007/156/CNca,07.doc
EXHIBIT G
ASSIGNMENT AND ASSUMPTION AGREEMENT
AGREEMENT dated as of ,- among (ASSIGNOR) (the
Assignor ), (ASSIGNEE) (the "Assignee ) and PACIFICORP (the
Borrower
WITNESSETH
WHEREAS, this Assignment and Assumption Agreement (the
Agreement") relates to the Credit Agreement dated as of October 23 2007 (the
Credit Agreement") among the Borrower, the Assignor, the other Banks party
thereto, The Royal Bank of Scotland pIc, as Syndication Agent, and Union Bank
of California, N., 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
amount of $ under the Credit Agreement at the date hereof; 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 to $ (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:
SECTION 1. Definitions. All capitalized terms not otherwise defined
herein have the respective meanings set forth in the Credit Agreement.
SECTION 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
(NY) 18007/156/CNca,07,doc
Credit Agreement to the extent of the Assigned Amount, including the purchase
fTom 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 fTom 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.
SECTION 3. Payments. As consideration for the assignment and sale
contemplated in Section 2 hereof, the Assignee shall pay to the Assignor on the
date hereof in Federal funds an amount equal to $ .* It is understood
that facility fees accrued to the date hereof are for the account of the Assignor and
such fees accruing fTom 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 ofthe 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.
(SECTION 4. Consent of the Borrower. This Agreement is conditioned
upon the consent of the Borrower, the Administrative Agent and the Issuing Bank
pursuant to Section 9.06(c) of the Credit Agreement. The execution ofthis
Agreement by the Borrower, the Administrative Agent and the Issuing Bank is
evidence of this consent. f*
SECTION 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.
SECTION 6. Non-Reliance on Assignor. The Assignor makes no
representation or warranty in connection with, and shall have no responsibility
Amount should combine principal together with accrued interest and breakage
compensation, if any, to be paid by the Assignee. It may be preferable in an appropriate case to
specify these amounts generically or by fonnula rather than as a fixed sum.
.. Delete if consent of the Borrower, the Administrative Agent and the Issuing Bank is
not required.
(NY) 18007/156/CA/ca.07.doc
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 of
the Credit Agreement or any Note. The Assignee acknowledges that it has
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.
SECTION 7. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 8. Counterparts. 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.
(NY) 18007/156/CNca.07,doc
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.
(ASSIGNOR)
By:
Name:
Title:
(ASSIGNEE)
By:
Name:
Title:
P ACIFICORP
By:
Name:
Title:
(UNION BANK OF CALIFORNIA
, as Administrative Agent
By:
Name:
Title: )
(ISSUING BANK
By:
Name:
Title: )
(NY) 18007/156/CNca,07,doc
EXHIBIT H
EXTENSION AGREEMENT
Union Bank of California, N., as
Administrative Agent
445 So. Figueroa St.
Los Angeles, CA 90071
Ladies and Gentlemen:
Effective as of (date), the undersigned hereby agrees to extend its
Commitment and Termination Date under the Credit Agreement dated as of
October 23, 2007 among PacifiCorp (the "Borrower ), the Banks party thereto
The Royal Bank of Scotland pic, as Syndication Agent and Union Bank of
California, N., as Administrative Agent (the "Credit Agreement") for one year
to (date), pursuant to Section 2.01(c) of the Credit Agreement. Terms defined in
the Credit Agreement are used herein as therein defined.
This Extension Agreement shall be construed in accordance with and
governed by the law of the State of New York. This Extension 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.
(NAME OF BANK)
By:
Name:
Title:
(NY) 18007/156/CA/ca,07,doc
Agreed and Accepted:
ACIFICORP
as Borrower
By:
Name:
Title:
UNION BANK OF CALIFORNIA, N.
as Administrative Agent
By:
Name:
Title:
(NY) 18007/156/CA/ca.07.doc